San Rafael City Council
September 8, 2026

109689\18674466v5

2. City Actions for Compliance with the HAA
The City’s improper processing conduct violates the HAA. The City must take immediate action in response to this written notice, including:
 Within five working days of receiving this written notice (i.e., by April 9, 2026), the City must (I) post this notice on its internet website, (II) provide a copy of the notice to any person who has made a written request for notices pursuant to subdivision (f) of Section 21167 of the Public Resources Code, and (III) file the notice with the county clerk of each county2 in which the Project will be located. (Gov. Code, § 65589.5, subd. (h)(6)(E)(ii).) All pages of the notice (all 25 pages) must be included when the City posts the notice, provides the notice to any person who has made a written request, and files the notice with the county clerk.
 Within between 60 and 90 days of receiving this written notice, the City must consider all objections, comments, evidence, and concerns about the Project or this written notice and then issue a written statement that it will immediately cease the abovementioned challenged conduct or issue written findings that comply with both of the following requirements: (I) an objective basis for why the challenged course of conduct is necessary and (II) clear instructions on what the applicant must submit or supplement so that the local agency can make a final determination regarding the next necessary approval or set the date and time of the next hearing [the latter of which is inapplicable to the SB 35 Project]. (Gov. Code, § 65589.5, subds. (h)(6)(E)(iii)–(iv).) Importantly, the City must continue to process the Project despite this notice. (Gov. Code, § 65913.4, subd. (c)(1)(C).)
* * *
We look forward to the City’s timely compliance with the abovementioned requirements of the HAA. We remind the City that an improper disapproval of the Project under the HAA could subject the City to a minimum fine in the amount of $10,000 per unit in the housing development, which amount, depending on the facts, can reach a minimum of $50,000 per housing unit if a court finds the City acted in bad faith. (Gov. Code, § 65589.5, subds. (k)(1)(A)(ii), (k)(1)(B), (l).) Further, Applicant would be entitled to attorneys’ fees and costs of suit. (Gov. Code, § 65589.5, subd. (k)(1)(A)(ii); Gov. Code, § 65914.2, subd. (b)(1).) Property. (See River Landon LLC v. Hinkle et al, U.S. District Court for the Northern District of California Case No. 3:25-cv-04904-LB.)
2 In turn, the county clerk shall post the notice and make it available for public inspection in the manner set forth in subdivision (c) of Section 21152 of the Public Resources Code. (Gov. Code, § 65589.5, subd. (h)(6)(E)(ii).)
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 170 of 344

109689\18674466v5
Sincerely,
Cox, Castle & Nicholson LLP
Andrew B. Sabey
cc: Andrea Visveshwara, City Attorney
Kevin Siegel, Burke, Williams & Sorensen, LLP
Nira Doherty, Burke, Williams & Sorensen, LLP
Exhibits:

A. Challenged Course of Conduct Table
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 171 of 344 109689\19341676v3 1
Exhibit A
Challenged Course of Conduct
The following conduct has been undertaken by the City for an improper purpose:

Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Applying non-objective standards to development Refuse collection areas shall be …located in areas
convenient to users and
collectors.

There shall be adequate
ingress and egress to all
utilities.

These are non-objective
standards.

Walls, etc. shall be used to
screen parking and loading
areas from view
This is a non-objective
standard.

What percentage of view
shall be shielded, and from
what angles, from how far
upslope?
Sending documentation/stating inconsistency by
alleging standards are applicable that have no
connection to the development submittal
Structures may encroach
into a required yard with a
compensating increase
subject to approval by the
hearing body
The applicant did not
request any such
encroachment
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 172 of 344 109689\19341676v3 2
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Fences located within the
front and streetside
setbacks may be 4 feet tall
etc. The plans do not
contain enough detail for
the city to determine
whether the project
complies with the fence
standards at this time
No fences have been
proposed
Sending documentation/stating inconsistency that
improperly relies on local standards when State
standards have preempted those local standards
The city equates all of these
together - housing types to
single family/multifamily to
a zoning classification –
single family to low density,
multifamily to medium/high
density zones. The city
claims that the
development must comply
with medium density
residential
development/multifamily
developments of a
minimum of 3 attached
units. It provides no
explanation of how that
would be permitted in a low
density residential zone nor
how it would be permitted
State law preempts this in
SB 35 which authorizes
multifamily housing on any
residential land. SB 35
provides for any qualifying
multifamily development of
2 or more units on any
residentially zoned land.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 173 of 344 109689\19341676v3 3
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
in a single family zone such
as the subject lots (such is
not permitted under city
code)
Developments must
provide two covered parking
spaces per unit
No covered parking is
required under State law
Sending documentation /stating inconsistency by
purporting a standard is not met when the
development contains/includes nothing to which
that standard applies
Additionally, on streets less
than twenty-six feet, a
minimum of two additional
on-site parking spaces
must be provided
The street is 26’ wide, is
clearly such and is clearly
marked as such
Where the proposed
landscape area is equal to
or greater than 2,500 sq ft
Sheet A.0.5. The
landscaping is less than
2,500 sq.ft.

Section requires driveways
serving residential uses
with less than 6 vehicle
parking spaces to be a min.
of 10 feet wide
The driveway serves 39
parking spaces. The
driveway (private street) is
26’, and wider in parts
No subdivision of land into
two (2) or more lots or
parcels for the purpose of
development shall be
approved unless it is
determined that the
following utilities and
services can be provided
No subdivision of land into
two or more lots is being
proposed
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 174 of 344 109689\19341676v3 4
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Table 1.4 Objective Design
Standards adopted March
2024.

First sentence of the
standards. “These
standards apply to all
“residential multifamily”
“residential singlefamily”..development.., all
of which are terms defined
in SRMC section

14.03.030”:

14.03.030: “”Residential,
multifamily means medium
and high density residential
development,…. containing
three (3) or more attached
dwelling units..” – a zoning
designation for land zoned
medium and high density
per the zoning ordinance
and General Plan.

Residential single family
means low density
residential development
The development is clearly
not in either of those
categories.

Further, the development
vested prior to these
standards being created
The subject lots are not in
this zoning.

This is not applicable to the
development
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 175 of 344 109689\19341676v3 5
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
containing one (1) primary
residential dwelling unit for
use by a single household
on a single parcel
Sending documentation/stating inconsistency by
alleging that planning data is not in the
development submittal when it is
Plans do not show
screening of parking from
the street
The plans clearly show
screening of parking from
the street.

Insufficient information has
been provided in plans to
verify the proposed height
Heights are clearly shown
on A2.2 to A3.4 - 15 sheets
comprehensively showing
the height as defined by
municipal code for every
building.

New streets and driveway
grades shall not exceed 18
per cent. The projects
plans do not appear to
indicate the proposed slope
A.0.2 site plan very clearly
shows the gradient of the
street at 8%, as do A.0.3,
A.0.8.

The cover page notes that
all spaces are 9 by 19 feet,
the application does not
contain information to
determine where all parking
spaces (sic)
Parking is shown on the
parking sheet A.0.3 and is
clearly shown as 19’ x 9’
Lighting for parking areas
must be mounted at
maximum of 15 feet
A.0.3 Parking & circulation
plan. The plans state
“Parking lighting is mounted
at 14’ from floor”
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 176 of 344 109689\19341676v3 6
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Sending documentation that misrepresents city
municipal code
Side yard setback to be 10
feet and front yard setback
to be 20 feet.

In fact municipal code
defines the yard
requirement as the average
on the block. (14.04.030)
Hillside Design Guidelines
state Fences and walls over
3 feet in height that face
public streets SHOULD (not
shall)
Definitions in Hillside
guidelines – SHOULD (not
shall) and where SHOULD is
used it states are not
mandatory.

City rewrites this code in its
consistency analysis stating
the word is “requires”
City misstates its own code
Res 14890: The affordable
housing units shall possess
a distribution of bedroom
counts proportionate to
that of the market-rate units
within the residential
development project
“The affordable housing
units shall have access to
the same amenities and
This code does not exist
The code in fact states
“Compatibility with
the…amenities…of the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 177 of 344 109689\19341676v3 7
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
common spaces as the
market rate units”
other developed units”. The
city rewrote this code
specifically for the
consistency notice on the
fly to make it objective.

Compatible is nonobjective. But the code
simply doesn’t exist
There are many examples of
the city making up the code
for the consistency letter of
October 2025. Yes – just
inventing municipal code,
to delay this compliant
application.

Asking for documents that have already been
provided
Geotechnical report is
required
Geotechnical report has
been provided
Demanding documents that are CEQA reports A Transportation Analysis report is required per city
Guidelines.

describe the report as
producing an outcome “that
include[s] conditions of
approval and/or mitigation
measures under CEQA”
Requiring this report is
prohibited under SB 35.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 178 of 344 109689\19341676v3 8
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Claiming – both directly and indirectly – that the
housing development project did not vest on May
15, 2023.

Making written statements that adopt, repeat, flow
from, or attempt to give effect to the City’s
erroneous position that the housing development
project did not vest on May 15, 2023
Definitive codification of
specifically SB 35 vesting:

Govt Code
65913.4(d) (1) review
“strictly focused on
assessing compliance with
criteria required for
streamlined projects, as
well as any reasonable
objective design standards
published and adopted by
ordinance or resolution by a
local jurisdiction before
submission of a
development application,
and shall be broadly
applicable to development
within the jurisdiction”
Ignoring Govt Code 65905.5 (c)(1) City raises multiple items (see above) that are subject
to the applying of density
bonus and waivers and thus
its (c)(1) letter in those
regards is invalid and not
issued consistent with State
law.
“The receipt of a density
bonus including any
incentives, concessions, or
waivers pursuant to Section
65915 shall not constitute a
valid basis on which to find
that a proposed housing
development project is
inconsistent, not in
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 179 of 344 109689\19341676v3 9
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Issuing inconsistency letters under 65913.4 (c) (A) &
(C) without first approving density bonus and
waivers & incorporating their effect into 65913.4 (c)
communications
Sending documentation alleging inconsistency of
items that are resolved by issuance of a bonus &
waivers, which bonus & waivers are being
improperly delayed by the city
Example
The General Plan limits
height on the site to 30 feet
tall. All primary dwellings
exceed 30 feet in height.
compliance, or not in
conformity, with an
applicable plan, program,
policy, ordinance, standard,
requirement, or other
similar provision.

The applicant had applied
for a waiver of this
standard, but the city is
unreasonably and with no
valid reason delaying the
issuance of the waiver
The development is entitled
to a bonus & waivers under
State law.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 180 of 344 109689\19341676v3 10
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
Stating “the applicant has not submitted sufficient
information to enable the City to analyze this
standard; therefore the Project is not consistent
with this standard” because the applicant has
submitted plans that provide substantial evidence
Repeated continually
throughout the purported
‘inconsistency’ letter
This is NOT the standard by
which SB 35 developments
are reviewed by a local
government:

Govt Code 65913.4 (f) (1).
“..shall not require studies
nor information that do not
pertain directly to
determining whether the
development is consistent
with objective planning
standards”
Govt Code 65913.4
(c)(3) “For purposes of this
section, a development is
consistent with the
objective planning
standards specified in
subdivision (a) if there is
substantial evidence that
would allow a reasonable
person to conclude that the
development is consistent
with the objective planning
standards. The local
government shall not
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 181 of 344 109689\19341676v3 11
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
determine that a
development… is in conflict
with the objective planning
standards on the basis that
application materials are
not included, if the
application contains
substantial evidence that
would allow a reasonable
person to conclude that the
development is consistent
with the objective planning
standards”
The development submitted
contained substantial
evidence that would allow a
reasonable person to
conclude that the
development is consistent
with the objective planning
standards.

Representing that the city can end the processing
of an SB 35 project by issuing a denial letter (and
after the 60 day (c)(1) period).

Representing that an applicant cannot resubmit
and processing be continued
Govt Code 65913.4 (a) “….
satisfies all of the following
objective planning
standards: (1) The
development is a
multifamily housing
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 182 of 344 109689\19341676v3 12
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
development that contains
two or more residential
units…”etc. Then,
65913.4(c)(1) ….Upon a
determination that a
development submitted
pursuant to this section is
in conflict with any of the
objective planning
standards specified in
subdivision (a), the local
government staff or
relevant local planning and
permitting department that
made the determination
shall provide the
development proponent
written documentation of
which standard or
standards the development
conflicts with, and an
explanation for the reason
or reasons the development
conflicts with that standard
or standards.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 183 of 344 109689\19341676v3 13
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
65913.4 (c)(1)(C) [shall
provide written
documentation] “within 30
days of submittal of any
development proposal that
was resubmitted to address
written feedback provided
by the local government
pursuant to this paragraph”
The city has no
authorization to require that
an applicant ‘start again
from the beginning”- nor be
subject to changed or
significantly changed city
planning standards since
the applicant designed the
development and
submitted its SB 35
application.

By way of this section, the
Statute provides (and the
Legislature definitively
intended for) the absolute
right to resubmit the
application. If this were not
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 184 of 344 109689\19341676v3 14
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
so, a city could simply
require that an applicant
start at the back of the line
again each time the city
raised an issue – and the
city could start its
incomplete all over again,
creating very extensive
delays, and, restart its
‘scoping consultation
process’ all over again, and
as importantly the
development would lose its
vesting, and the
development be subjected
to significant amendment
by the applicant if new
applicable standards had
been created by the local
government in the interim.

Needlessly raising the cost of obtaining approvals The city continually raises subjects in writing that do
not conform to State law
(see this notice), and that
often stop processing of
this streamlined ministerial
application, & that lead to
the applicant engaging in
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 185 of 344 109689\19341676v3 15
Challenged conduct: City sent/sends
documentation which
states:

Applicant’s response
extensive unnecessary
work, and work that is not
required by state law
Failing to follow the processes outlined in Govt
Code 65913.4 as described in the case law,
including 40 Main Street Offices LLC v. City of Los
Altos
See attached excerpts from
Order Granting
Consolidated Petitions for
Writ of Mandate, 40 Main
Street Offices, LLC v. City of
Los Altos, Case No.
19CV349845 (County of
Santa Clara, April 24, 2020).

Delaying approval of housing in the residential
zones in favor of development more acceptable in
general to residents of the City in the
downtown/commercial districts.

Following a policy of denying housing on the
improper basis that residential lots have or may
have circulation, access, and slope issues.

City advised applicant that
“there are issues with these
lots.”
Housing of all types,
including housing with
yards, and in all parts of
San Rafael, is supported by
Affirmatively Furthering Fair
Housing requirements and
Federal Fair Housing law,
No Net Loss law, Housing
Crisis Act, Housing Element
Law
It should be noted that it is the applicant’s position that the development is subject to Gov’t Code Section 65589.5(d)(5).

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 186 of 344 109689\19341676v3 16
Excerpts from
Order Granting Consolidated Petitions for Writ of Mandate 40 Main Street Offices, LLC v. City of Los Altos,
Case No. 19CV349845 (County of Santa Clara, April 24, 2020) Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 187 of 344 O&DOONJQU‘I-bwmfl
NNMNNNNNNr—Iy—Ap—LHHr—Lt—Hr—Ir—n
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get the City Council t0 recognize the mandatory timelines and requirements 0f SB 35 and the consequences 0f its having earlier failed t0 meet those provisions, and t0 correct its prior en'oneous approach.

Finally, the Court concludes that the inj ustice that would result in the absence 0f estoppel is enough t0 justify application 0f the doctrine here.

For all 0f these reasons, the Court rejects the City’s statute-of—limitations defense and reaches the merits 0f petitioners’ claims.

B. Petitioners Are Entitled t0 Reliefon the Merits
Petitioners allege that the City’s conduct violated three different housing statutes:
(1) the streamlining statute (§ 65913.4, SB 35); (2) the Density Bonus Law (§ 6591 5); and (3) the Housing Accountability Act (§ 65589.5).

1. The City Failed t0 Comply wifh Section 65913.4
i. Statutory Background
In 2017, the Legislature passed SB 35 t0 reform land-use and housing law, including by creating “a streamlined, ministerial approval process for infill developments in localities that have failed to meet their regional housing needs assessment numbers?” (Sen. Rules C0111, Rep. 0n Sen. Bill N0. 35 (2017—2018 Reg. Sass.) May 27, 2017.) Section 65913.4, subdivision (a) states in relevant part: “A development proponent may submit an application for development that is subject t0 the streamlined, ministerial approval process provided by subdivision (b) and not subj ect t0 conditional use permit if the development satisfies all 0f the obj ective planning standards” set forth further in subdivision (a).
13 As part 0f the housing element 0f municipality’s general plan, it must calculate its Regional Housing Needs Allocation 0r Assessment (RHNA), which is the ‘existing and proj ected need for housing’ in the area for individuals and households 0f all income levels. (Fomeca v. City osz'Zray (2007) 148 Ca1.App.4th 1174, 1186, fn. 8, quoting Gov. Code, 65583.) If municipality’s present and proj acted housing needs exceed its housing stock and land available for development, it must work t0 satisfy its RHNA by increasing the availability 0f land for housing development by, for example, changing zoning and development restrictions. (Gov. Code, 65583, subd. (c)(1)(A).)
23 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 188 of 344 The objective planning standards that operate as eligibility criteria for streamlined, ministerial review consist 0f inclusionary and exclusionary criteria. 111 the abstract, the inclusionary and exclusionary criteria balance the primary policy of expediting housing construction with the competing policy 0f safe, well—designed construction as embodied in existing law. T0 illustrate, proposed development must be “a multifamily housing development that contains two 0r more residential units” in an urban area that will not displace existing rentcontrolled and income-restricted housing. (§ 65913.4, subds. (a)(1)—(2), (a)(7).) mixed~use development still qualifies if “at least two—thirds 0f the square footage of the development [are] designated for residential use.” (§ 6591 3.4, subd. (a)(2)(C).) Exclusionary criteria disqualify development proposed for construction in 01* 0n coastal zone, fire zone, flood plain, earthquake fault zone, hazardous-waste site, wetland, 01‘ prime famnland. (§ 6591 3.4, subd. (a)(6).) Currently, the statute specifies that when evaluating consistency with the standards above, development is consistent “if there is substantial evidence that would allow reasonable person t0 conclude that the development is consistent with the obj active planning standards?” (§ 65913.4, subd. (b)(3).) Unless an agency timely explains t0 developer in writing the reasons why the proposed development is not consistent with the eligibility criteria, “the development Shall be deemed t0 satisfy the objective planning standards in subdivision (3).” (§ 65913.4, subds. (b)(1)—(2).) An agency’s deadline for notifying project proponent 0f ineligibility for streamlined, ministerial review is either 60 0r 90 days depending 011 the size 0f the proposed development. (§ 65913.4, subds. (b)(l)(A)—(B).)
Proposed developments that qualify for streamlined, ministerial review may still be subj ect t0 design review 01‘ public oversight with the limitation that this oversight “shall be objective and be strictly focused 0n assessing compliance with criteria required for streamlined proj ects, as well as any reasonable objective dasign standards published and adopted by ordinance 0r resolution by local jurisdiction before submission 0f development application, l4 Section 65913.4, subdivision (b)(3) became effective January 1, 2020. (Sen. Bill N0. 23S (2019—2020 Reg. Sess.) 5.3; Assem. Bill N0. 1485 (2019m2020 Reg. Sass.) 1.) 24 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 189 of 344 OONJQM¥UJNHO©OONJOMAWNH
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and shall be broadly applicable t0 development within the jurisdiction.” (§ 65913.4, subd. (c)(l),) The design review must be completed, if at all, within 90 0r 180 days” depending 0n the size 0f the development and “shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section or its effect .”'6 (§ 65913.4, subd. (c)(l).) ii. Application
The City’s notice 0f inconsistencyhere, its SB 35 denial letter 0f December 7, 2018, was neither code-compliant nor suppofied by substantial evidence.

Section 65913.4 subdivision (b)(l) provides: “If local government determines that development submitted pursuant t0 this section is in conflict with any 0fthe objective planning standards specified in subdivision (a), it Shall provide the development proponent written documentation 0f which standard 0r standards the development conflicts with, and an explanation for the reason 01‘ reasons the development conflicts with that standard 01' standards .” The Court concludes here that the City failed t0 comply with this notice requirement 15 This means that for smaller development, the deadline for notice of ineligibility is 60 days (§ 65913.4, subd. (b)(])(A)) and an agency may take an additional 30 days t0 complete design review 0r public oversight for total 0f 90 days (§ 6591 3.4, subd. (c)(1)). For larger development, the deadline for notice 0f ineligibility is 90 days (§ 65913.4, subd. (b)(1)(B)) and an agency may take an additional 90 days t0 complete design review 0r public oversight for total 0f 180 days (§ 65913.4, subd. (c)(2)).
16 Notably, while section 6591 3.4, subdivision (c) gives localities additional time to review objective design standards, the Legislature also enumerates compliance with “objective design review standards” as an objective planning standard~—an eligibility criterion—in subdivision (a)(S). There does not appear t0 be substantive distinction between these two terms.

The descriptions in subdivisions (a)(5) and (c) of what design standards may be applied are so similar that they suggest the terms are equivalent. The statutory framing 0f design standards as both eligibility criteria and criteria capable 0f review during the extended timeframe for public oversight is problematic because 0f the distinct deadlines for making those distinct determinations. Treating compliance with Obj ective design standards as an objective planning standard under subdivision (a) arguably renders as surpluSage the later deadline for design review in subdivision (c)(l). Coufls typically avoid intelpreting statutes in such manner. (Amer! v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Ultimately, the Court need not resolve this ambiguity based on the pafiicular record and arguments advanced here. The City did not comply by either deadline and does not ask for additional time t0 conduct public oversight in its supplemental brief 0n the scope 0f relief that is warranted. 25 ORDER GRANTWG PETITIONS FOR WRIT OF MANDATE
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 190 of 344 OO‘QONL/i-RUJN
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11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
27 28
because the City did not adequately identify objective standards and provide an explanation 0f inconsistencies supported by substantial evidence in its SB 35 denial letter.

First, the City did not adequately identify applicable objective standards with which the project did not comply. The City conceded its initial error in asserting that higher percentage of affordable units was required; it had relied 0n an outdated and incorrect HCD determination. (AROOOI 69.) Thus, it is undisputed that the first bullet point in the City’s denial letter was based 011 an incorrect and inapplicable standard.

As for the other two bullet points, the City did not adequately identify the standards or code provisions it was referring t0 01‘ relying 0n. It concluded the proj ect lacked “the required number 0f off-street residefitial and Visitor parking spaces” and “adequate access/egress t0 the proposed off-Street parking.” (AR000127.) But it is not apparent from this vague statement just what those purpofied standards are. 01‘ where they can be located. Thus, the City did not adequately identify the parking standards it was relying 0n. And notwithstanding the opacity and ambiguity 0f the City’s statement, it is apparent that it was not relying on permissible, obj ective standards for parking. First, section 65913.4, subdivision (d)(2) states that “the local government shall not impose automobile parking requirements for streamlined developments approved pursuant t0 this section that exceed one parking space per unit.” (§ 65913.4, subd. (d)(2).) And for proj ects meeting certain criteria—such as projects within 011e—half mile of‘tl‘ansithno parking requirements may be imposed. (§ 6591 3.4, subd. (d)(1).) Consequently, the City not only failed t0 identify the purported parking requirement but also failed t0 account for the prohibitions in section 6591 3.4, subdivision (d) as well. Moreover, the City has yet t0 identify any evidence in the record t0 support the conclusion that it could require more parking based 011 the location and characteristics 0f the proj ect here.

As for ingress and egress, “adequacy” is not an obj ective stahdard that may be applied t0 streamlined proj eats. Obj ective standards are those “that involve 110 personal 0r subjective judgment by public official and are uniformly verifiable by reference t0 an external and uniform benchmark 0r criterion available and knowabls by both the development applicant 0r proponent and the public official before submittal.” (§ 65913.4, subd. (a)(S).) What qualifies as 26 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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adequate—in the absence 0f an identifiable standard 01‘ definition—is simply matter of personal 0r subj ective judgment. T0 date, the City has not identified uniformly verifiable, knowable standard for adequate ingress and egress. Accordingly, it impermissibly relied 0n subjective standard in its denial letter.

What’s more, there is n0 explanation in the denial letter about how the proposal was inconsistent with the unspecified standards applied by the City. For example, the City did not explain that the project provided only number of parking spaces when the required number was Y. So, the City’s denial letter was not code-compliant in this regard as well.

The City does not present convincing argument t0 support contrary conclusion. In the City’s papers, it does not clearly and directly counter petitioners’ supporting points. For example, the City does not argue that it adequately identified all 0f the Objective standards set forth in its denial letter 01‘ that all 0f the standards it identified qualified as objective standards permissibly applied in the course 0f streamlined review. And the City does not explain how its cursory reference t0 such standards qualified as “an explanation for the reason 0r reasons the development conflicts with that standard 0r standards.” (§ 6591 3.4, subd. (b)(l).)17 Instead, the City argues the denial letter, when read in conjunction with the incomplete notice, put Developer 0n sufficient notice so as t0 somehow satisfy section 6591 3.4. This argument lacks merit.

The first problem with the City’s contention is that it relies 0n an unspecified standard for the sufficiency 0f notice in lieu 0f the standard spelled out by the Legislature in section 65913.4, subdivision (b)(l). Although not clearly articulated by the City, it seems t0 invoke the concept 0f notice in the context 0f the constitutional minimum for procedural due process. (See generally Gilbert v. City ofSunnyvaZe (2005) 130 Cal.App.4th 1264, 1275—1280.) But the issue here is not whether the City met the constitutional minimum. The issue is whether it complied with the applicable statutory requirements.
17 Section 6591 3.4 does not merely require statement ofreasons for denying an application for streamlined review. Rather, it imposes the more specific requirement 0f an explanation 0f how the proposed development conflicts with the objective standards that the municipality identifies.
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The City does not advance persuasive argument for disregarding the Specific statutory requirements for notice. While it purpons t0 invoke principle 0f statutOIy construction that places substance over form, it is not necessary t0 rely 0n, and the City does not fairly interpret and rely 0n, that principle. (See generally Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1332 [discussing scope and limitations 0f concept 0f substantial compliance].) In actuality, the City urges complete disregard for the language of the statute in vacuum and without regard for the statute’s purpose. In other words, the City disregards the form and the substance 0f the statute. The language the City asks the Court t0 ignore——What it suggests is mere formality—is in fact the specific procedure at the heart 0f the statute that effectuates its purpose.

In the absence 0f deemed compliance under section 6591 3.4, subdivision (b), the statute would operate as mere suggestion without an enforcement mechanism. And, because section 659 .4, subdivision (b) is consistent with and Effectuates the purpose 0f the statute, there is 110 inconsistency between that “form” and the substance 0f the statute necessitating reconciliation 0f those concepts under the canon invoked by the City. The City’s argument in this regard is questionable and its reliance 0n County ofKem v. TCEF, Inc. (2016) 246 Cal.App.4th 301 is misplaced. The Court applies the requirements for notice 0f inconsistency that are plainly spelled out in the statute, not an amorphous due process standard that would d0 violence to its very language and purpose.

The second problem with the City’s argument is that it relies 0n an implausible and unreasonable interpretation 0f the record. The City states that its incomplete notice and denial letter provide sufficient documentation when read together. But the terms 0f these documents d0 not support such construction. The City explicitly stated that it was proceeding as though it had two applications submitted by Developer in November 201 8. It purported t0 deny one application and find the other incomplete. The conespondence setting forth those distinct decisions, while issued together, cannot be fairly read and interpreted in the manner the City now urges. The incomplete notice does not purpofi t0 specify inconsistencies with Obj ective standards under SB 35; it purports t0 specify the additional information required before traditional, discretionary review could be commenced. Similarly, the denial letter does not purport t0 require additional 28 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 193 of 344 Exhibit 2
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 194 of 344 Court of Appeal, First Appellate District
Charles D. Johnson, Clerk/Executive Officer
Electronically FILED on 1/16/2026 by G. King, Deputy Clerk Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 195 of 344 residents — filed a petition for a writ of mandate to set aside the approvals.

It argued the projects do not qualify for review under section 65913.4 and the City thus violated CEQA by failing to prepare or review environmental review documents for the projects. The trial court rejected these arguments.

We do too and affirm.

BACKGROUND
The City contains remnants of the "U.S. Benicia Arsenal," originally used as a military reserve in the 1800s. It was later named the Benicia Arsenal Historic District (Arsenal District), listed in the National Register of Historic Places, and designated as a California state historical landmark.

The Arsenal District is comprised of three clusters of historic buildings. One is the Officers' Row, which consists of several buildings — such as a fortress overlooking the Carquinez Strait, a commander's residence, and three additional officers' residences — in a straight line along Jefferson Street. It also contains a former parade ground, described as open space, and stairways.

In 2017, the Legislature enacted Senate Bill No. 35 (2017-2018 Reg.

Sess.), authorizing applicants who propose multifamily housing development that satisfies certain planning objectives to pursue a ministerial approval process and excusing them from a seeking a conditional use permit — a permit using zoning and planning principles but for which approval is discretionary. (Stats. 2017, ch. 366, § 3, eff. Jan. 1, 2018; § 65913.4, subd. (a); McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 85.) As relevant here, such a development must be in a locality that has failed to provide its share of the regional housing needs by income category. (§ 65913.4, subd. (a)(4)(A)(i)(I).) The development also must be, among other things, a multifamily housing development containing 2 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 196 of 344 at least two units with a certain percentage of low-income units; sited in urbanized area zones or designated by the general plan for residential or mixed use. (Id., subds. (a)(1)—(5).) Development on certain sites is further restricted. For example, development may not be located on a site that requires the demolition of a historic structure, or on wetlands or habitat for protected species. (Id., subds. (a)(6)(C), (J), (a)(7)(C).) The determination that an application for a development "is subject to the streamlined ministerial approval process" is "not a `project' as defined" under CEQA — a statutory scheme requiring public agencies to refrain from approving development projects with significant effects on the environment, i.e., substantial or potentially substantial, adverse change in the environment. (§ 65913.4, subd. (o); Pub. Resources Code, §§ 21000, subd. (g), 21080, subds. (a)—(d); Cal. Code Regs., tit. 14, § 15382.)
The City passed a resolution acknowledging its insufficient progress toward satisfying the need for moderate-income regional housing. It approved use of the ministerial approval process for proposed developments with at least 10 percent affordability. In January 2021, real parties in interest Gina Cooper and Orchard Crossing, Inc. (collectively, Orchard Crossing) submitted a notice of intent and, several months later, a development application under section 65913.4 to construct the Park Road project. The project includes a 14-unit apartment complex comprised of two, two-story buildings with a mix of two- and three-bedroom units. Three of the units would be deed restricted to low-income housing. The proposed development site is a vacant parcel in the northwest corner of Park Road and Jefferson Street, located within the Officers' Row.

Initially, the City determined the Park Road project was inconsistent with section 65913.4 eligibility requirements, including objective zoning, 3 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 197 of 344 subdivision, and design standards. Orchard Crossing submitted an updated plan with minor changes to correct those deficiencies. After reviewing the revised plans, the City deemed them consistent with all objective standards.

It issued a permit under section 65913.4, finding the Park Road project was exempt from CEQA.

In November 2021, real parties in interest Keith Rogal and Rogal & Associates (Rogal) submitted a development application for the Jefferson Ridge project — 121 condominium units within three-story town house-style buildings in eight clusters, and one 2,000 square foot commercial building.

Of those units, 10 percent would be deed restricted for very low- and lowincome households. The City initially determined the project was inconsistent with certain objective planning standards, but it later approved the permit under section 65913.4 and found the project exempt under CEQA. 1000 Friends notified the City of its intent to appeal the approval of both projects to the city council under Public Resources Code section 21151 — the provision governing appeals of the adoption of a negative declaration or determination that a project is exempt from CEQA. But the City explained the projects were approved under section 65913.4, which does not permit any additional time for appeals, and, in any event, the time for the City to consider a potential appeal had already passed. 1000 Friends petitioned for a writ of mandate under Code of Civil Procedure section 1094.5, alleging the City violated CEQA by approving the projects. It also argued that a determination that a project is not subject to CEQA may be appealed to the agency's elected decision-making body. (Pub. Resources Code, § 21151, subd. (c).) Finally, it alleged the projects would result in the demolition of historic structures within the Arsenal District, were sited on wetlands and habitats 4 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 198 of 344 suitable for protected species, and did not comply with applicable municipal code requirements, thus failing to satisfy criteria for ministerial processing.

The trial court denied the petition. It concluded CEQA administrative appeal procedures in Public Resources Code section 21151 do not apply to the ministerial approval of projects, such as those under section 65913.4. It further concluded neither project requires the demolition of a historic structure and there was no substantial evidence of any wetland, protected species, or likelihood of any habitat for protected species currently existing at the proposed sites.

DISCUSSION
1000 Friends challenges the denial of its writ petition and argues that the Jefferson Ridge and Park Road projects do not qualify for streamlined ministerial review under section 65913.4. We are unpersuaded.

The Legislature has determined California faces a housing affordability crisis driven by a lack of housing as a result of the "underproduction of housing of all types." (§§ 65584.08, subd. (a)(1), 65589.5, subd. (a)(2)(A).) There is a "severe shortage of affordable housing, especially for persons and families of low and moderate income." (§ 65913, subd. (a).) Each locality must adopt a comprehensive, long-term general plan, including a "housing element" to address housing needs. (California Building Industry Assn. v.

City of San Jose (2015) 61 Ca1.4th 435, 444.) To encourage the development of new housing, the Legislature sought to "[e]xpedite the local and state residential development process." (§ 65913, subd. (a)(1).) It enacted Senate Bill No. 35 to facilitate the construction of new housing subject to a "streamlined, ministerial approval process," "not subject to a conditional use permit" if it satisfies statutorily enumerated objective planning standards. (§ 65913.4, subd. (a); Stats. 2017, ch. 366, § 3, eff. Jan. 1, 2018.) 5 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 199 of 344 Among those objective planning standards, the development must be "a multifamily housing development that contains two or more residential units." (§ 65913.4, subd. (a)(1).) It must be located on a site "zoned for residential use or residential mixed-use development," or "has a general plan designation that allows residential use or a mix of residential and nonresidential uses," with at "least two-thirds of the square footage of the development . . . designated for residential use." (Id., subd. (a)(2)(C).) In addition, the development must be "consistent with objective zoning standards, objective subdivision standards, and objective design review standards in effect at the time that the development is submitted to the local government pursuant to this section." (Id., subd. (a)(5).) The local government "shall approve the development" if the planning director or equivalent position "determines that a development submitted pursuant to this section is consistent with [these] objective planning standards." (Id., subds. (c)(1), (d)(1).)
We review the City's decisions approving the developments under the traditional mandamus provisions in Code of Civil Procedure section 1085.

The City's determination does not involve any "personal or subjective judgment by a public official," and the standards are "uniformly verifiable by reference to an external and uniform benchmark." (§ 65913.4, subd. (a)(5).) Development applicants and public officials both know the objective standards. (Ibid.) Local government must approve a development if it is "consistent with the objective planning standards" — that is, "there is substantial evidence that would allow a reasonable person to conclude that the development is consistent with the objective planning standards." (Id., subds. (c)(1), (3).) There does not appear to be any " `discretion in the determination of facts . . . vested in' " the government. (Citizens for East 6 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 200 of 344 Shore Parks v. State Lands Corn. (2011) 202 Cal.App.4th 549, 571.) Thus, a decision approving the projects under section 65913.4 is a quasi-legislative determination reviewable under the more deferential traditional mandamus standard in Code of Civil Procedure section 1085, not Code of Civil Procedure section 1094.5 as 1000 Friends insists. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Ca1.4th 653, 667; Citizens for East Shore Parks, at p. 571.) Its petition does not challenge the results of an administrative hearing for which Code of Civil Procedure section 1094.5 would apply. (Danser v. Public Employees' Retirement System (2015) 240 Cal.App.4th 885, 890; Code Civ. Proc., § 1094.5, subd. (a) [administrative mandamus only governs judicial review after an administrative order "made as the result of a proceeding in which by law a hearing is required to be given"].) We cannot identify — and 1000 Friends fails to cite — any provision that requires the City to have an administrative hearing before approving the project under section 65913.4.

Traditional mandamus under Code of Civil Procedure section 1085 requires the petitioner to demonstrate the agency's decision was arbitrary, capricious, or lacking in evidentiary support, or that the agency failed to follow procedures or give required notices, a deferential standard of review. (San Francisco Fire Fighters Local 798 v. City and County of San Francisco, supra, 38 Ca1.4th at pp. 667-668; Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 298 (Ruegg).) On appeal, the standard of review is the same as the one employed by the trial court — whether the City abused its discretion by approving the projects under section 65913.4. (Ruegg, at p. 298.) Issues of law are reviewed de novo. (Citizens for East Shore Parks v. State Lands Corn., supra, 202 Cal.App.4th at p. 573 [noting no distinction between the standards of review on issues of law in either traditional 7 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 201 of 344 mandamus and administrative mandamus proceedings under Code Civ.

Proc., § 1094.5 since both "embrace review for legal error, including procedural irregularity"].) And where a petitioner's challenge in a mandamus action "rests on claimed insufficiency of the evidence," we do "not have the power to judge the intrinsic value of the evidence or to weigh it." (Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal.App.3d 663, 672.) "Instead, review is limited to determining whether substantial evidence supports the administrative body's findings." (Ibid.)
I.

Proposed projects are not entitled to approval under section 65913.4 if they "would require the demolition of a historic structure that was placed on a national, state, or local historic register." (§ 65913.4, subd. (a)(7)(C).) 1000 Friends argues the projects violate this criterion. Relying on various historic preservation laws, it contends the definition of "historic structure" includes "historic districts." It notes the Arsenal District is listed on the National Register of Historic Places and the State Office of Historic Preservation, and the Officers' Row satisfies various state and federal preservation laws' definition of "historic structure or district." On that basis, it argues both are protected "historic districts." Because the proposed projects would require building within these districts — 1000 Friends reasons — the projects would "demolish the connective structure" of the districts by breaking up and destroying their linkage and visible context. As a result, the projects are not entitled to ministerial review. After independently reviewing this issue of statutory interpretation, and giving the statute's words their ordinary meaning, we disagree. (Ruegg, supra, 63 Cal.App.5th at p. 301.) Section 65913.4 does not define the term "structure." The lack of a statutory definition indicates the Legislature intended to give that term its 8 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 202 of 344 plain and commonsense meaning. (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083.) "To determine the common meaning, a court typically looks to dictionaries." (Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 444.) Black's Law Dictionary defines "structure" as "[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together." (Black's Law Dict. (12th ed. 2024).) Another definition is "something (such as a building) that is constructed." (Merriam-Webster Dict. Online (2026) <https://www.merriamwebster.com/dictionary/structure> [as of Jan. 16, 2026].) So defined, the statute prohibits demolition of an individual construction.

Thus, the Arsenal District — an area 1000 Friends identifies as consisting "of multiple interrelated buildings" and structures that functioned as an interconnected whole — is not a "structure." As it concedes, the district is comprised of a collection of structures, including several buildings that were formerly officers' quarters. That the buildings within the Arsenal District have a "pattern of organization" or a "clear relationship" with each other does not render the buildings "joined together" under the Black's Law Dictionary definition, as it insists. (Italics added.) More importantly, it concedes the projects would not require the demolition of any historic building. That the Arsenal District itself has been placed on the National Register of Historic Places is irrelevant. "[S]tructure[s]," not districts, are entitled to protection from demolition under section 65913.4. (Id., subd. (a)(7)(C).) Nor are the stairways within the Arsenal District structures protected under section 65913.4 — they do not appear on any historical register. (Ruegg, supra, 63 Cal.App.5th at p. 306 ["The section 65913.4, subdivision (a)(7)(C) exception is for a `structure' placed on a historical 9 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 203 of 344 register, not for a site where a structure once existed"].) Likewise, the Officers' Row consists of a collection of "individual buildings," the former parade ground, and land that 1000 Friends identifies as "open space" that was "never developed."1 The area itself is not an "historic structure" within the meaning of section 65913.4.

Relying on definitions in historical preservation statutes, 1000 Friends urges us to broadly define "historic structure" to include historic districts and interrelated sites. (E.g., Health & Saf. Code, § 18955 [defining "qualified historical building or structure" as "any structure or property, collection of structures, and their related sites deemed of importance to the history, architecture, or culture of an area by an appropriate local or state governmental jurisdiction"]; Pub. Resources Code, § 5024, subd. (h) [defining "structure" under the state-owned historical resources list as "an immovable work constructed by man having interrelated parts in a definite pattern of organization and used to shelter or promote a form of human activity and which constitutes an historical resource"].) Specifically, it argues the state historical building code protects " `qualified historical building[s] or structure[s]' " that exist on a variety of places such as "historical or architecturally significant sites, places, historic districts, or landmarks." (Health & Saf. Code, § 18955.) A "historic district" is "a definable unified geographic entity that possesses a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development." (Pub. Resources Code, 1 1000 Friends also contends that connecting sidewalks and a portion of a tennis court are part of this historic district. We see nothing in the record — and 1000 Friends fails to identify anything — to support this assertion.
10 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 204 of 344 § 5020.1; see also 36 C.F.R. § 60.3 [historic district is "a geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development. A district may also comprise individual elements separated geographically but linked by association or history"].) Based on the protections the Legislature afforded historic districts, 1000 Friends argues it must have intended section 65913.4's protection of "historic structure[s]" to encompass "historic districts." Reliance on preservation statutes to define the term "structure" is misplaced. (Ruegg, 63 Cal.App.5th at pp. 303-304.) These statutes "highlight the importance state and local government has attached to historical preservation," affording "protection to historical and cultural resources." (Ibid.; Health & Saf. Code, § 18953 [State Historical Building Code provides "means for the preservation of the historical value of qualified historical buildings or structures"].) Section 65913.4, however, "is not a historical preservation statute." (Ruegg, at p. 303.) Rather, it is intended "to expedite approval of affordable housing developments." (Ruegg, at p. 304.) The "historic structure exception in section 65913.4 indicates the Legislature did not intend to require ministerial approval of affordable housing projects at the expense of all historical preservation." (Ibid.) It is limited, and "cautions against giving that exception its broadest possible meaning." (Ibid.) Thus, we will not construe the term "historic structure" in section 65913.4 to include "historic district."
This reading comports with the statute's purpose and "is consistent with other provisions." (Lungren v. Deukmejian (1988) 45 Ca1.3d 727, 735.) Interpreting the term "historic structure" narrowly obeys the Legislature's stated intention that section 65913.4 "be interpreted and implemented in a 11 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 205 of 344 manner to afford the fullest possible weight to the interest of, and the approval and provision of, . . . housing." (§ 65913.4, subd. (u).) Further, subdivision (e)(1)(B) expressly limits parking requirements for section 65913.4 developments in a "historic district." (§ 65913.4, subd. (e)(1)(B) [local government "shall not impose automobile parking standards for a streamlined development that was approved" when the "development is located within an architecturally and historically significant historic district" (italics added)].) Reading the statute as a whole, section 65913.4 contemplates streamlined approval of developments located in historic districts. (Lungren, at p. 735 [statute's "words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible"].) It simply prohibits the demolition of any historic structure, if any, in the historic district. Defining "structure" as "district" would render subdivision (e)(1)(B) superfluous. (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083 [courts must avoid statutory interpretations that render any part of a statute as superfluous].)
Because 1000 Friends's argument fails at the first hurdle — the Arsenal District and Officers' Row are not historic structures — we do not address its argument that the projects would demolish these districts by destroying the linkage and visible context, and block views between buildings.

II.

The City determined the National Wetlands Inventory does not identify any wetlands within the boundaries of the proposed Jefferson Ridge project.

It also determined the Jefferson Ridge and Park Road projects were proposed on sites surrounded by development and that had been previously developed — they were not located on sites containing a protected species 12 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 206 of 344 habitat. 1000 Friends contends there is unrefuted evidence of wetlands on the Jefferson Ridge project site and biological resources in both the proposed project areas — section 65913.4 prohibits development on such areas. Thus, it argues the City abused its discretion by approving the projects. We disagree. 1000 Friends has not demonstrated " `there is no possible substantial evidence whatsoever to support' " the City's findings. (Alameda Health System v. Alameda County Employees' Retirement Assn. (2024) 100 Cal.App.5th 1159, 1177-1178.)
First, proposed developments are eligible for ministerial review if the "development is not located on a site" that is "[w]etlands, as defined in the United States Fish and Wildlife Service Manual." (§ 65913.4, subd. (a)(6)(C).) That manual defines wetlands as "lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water." (U.S. FWS (1993) Wetlands Classification System, § 2.5 (A), at <https://www.fws.gov/policy-library/660fw2> [as of Jan. 16, 2026].) Specifically, wetlands must have one or more of the following three attributes: "(1) at least periodically, the land supports predominantly hydrophytes (plants specifically adapted to live in wetlands); (2) the substrate is predominantly undrained hydric (wetland) soil; and (3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year." (Ibid.)
None of those attributes apply to the proposed Jefferson Ridge site.

According to an environmental site assessment regarding the topographic, geologic, and hydrogeologic characteristics of Jefferson Ridge — located north of Adams Street and east of Park Road — the "property is located in one of [the City's] small urban watersheds," a "region draining into a body of water." Two sections of the site contain well-drained soil, consisting primarily of clay 13 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 207 of 344 loam and weathered bedrock. The third section contains silty clay with a low filtration rate. Although the report notes one section of the property has hydrologic soils of the type associated with high water tables, we do not interpret this — nor does 1000 Friends argue — as equivalent to the substrate being nonsoil and saturated with, or covered by, water so as to demonstrate the presence of wetlands.

Moreover, the report did not indicate the site contained land supporting predominately plants adapted to live in wetlands. Instead, it "is dominated by a single vegetation community; ruderal vegetation." Far from supporting wetland plants, the property site "has been subject to annual vegetation clearing to reduce fire hazards." And while the assessment identified several areas of wetlands listed on the National Wetlands Inventory — one along the northern border of the project site that 1000 Friends concedes is within onehalf mile north of the project site and large numbers of wetlands far south in the Carquinez Strait — none of them are within the proposed development site. A stormwater control plan for the Jefferson Ridge project confirmed there are no existing wetlands from which the project site must have setbacks. Substantial evidence supports the City's finding the Jefferson Ridge project is not located on a site that is wetlands.

Citing an alleged 2007 draft environmental impact report (EIR) by the City for a proposed "Lower Arsenal" mixed-used specific plan, 1000 Friends insists the Jefferson Ridge site contains seasonal wetlands. This argument — based on a narrow portion of the record — ignores the standard of review. We do not overturn decisions supported by substantial evidence "merely because a contrary finding would have been equally or more reasonable." (Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 829-830.) More importantly, its argument 14 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 208 of 344 misrepresents the record. Rather than citing an EIR, 1000 Friends cites a 2022 letter from a City resident on behalf of the Benicia Arsenal Park Task Force and Benicia Arsenal Defense — in opposition to the Jefferson Ridge project — that simply describes the alleged draft report for a specific plan that the City never adopted. Critically, the record does not contain the draft EIR. And 1000 Friends fails to identify any draft report specifically addressing the Jefferson Ridge project — the project at issue here. Nor did it request judicial notice of the draft EIR. So we do not consider it. (Pulver v.

Avco Financial Services (1986) 182 Cal.App.3d 622, 632 ["As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review"].)
Moreover, substantial evidence supports the City's finding that neither project site is a "[h]abitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by" the federal Endangered Species Act of 1973, the California Endangered Species Act, "or the Native Plant Protection Act." (§ 65913.4, subd. (a)(6)(J); 16 U.S.C. § 1531 et seq. [Endangered Species Act]; Fish & G. Code, §§ 1900 et seq. [Native Plant Protection Act], 2050 et seq. [California Endangered Species Act].) A 2013 biological assessment performed by an environmental consultant reviewed records maintained by the California Natural Diversity Database of the Department of Fish and Wildlife, mapping prepared by the U.S. Fish and Wildlife service, and additional available background information. Among other things, it assessed the area within the City limits for special status plant and animal species. A map identified special status plant species and the likelihood of their occurrence within the area, not simply the small 15 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 209 of 344 coastal shoreline, as 1000 Friends contends. Notably, no protected species were found in the area of either project site. Although the map identifies the habitat of the Carquinez Goldenbush — deemed a rare and endangered plant by the California Native Plant Society's Rare Plant Inventory— as having the greatest likelihood of occurrence within the project sites, the assessment found there was no likelihood of the species occurrence on the site. Indeed, there was no suitable habitat for that plant species within the City limits.

The assessment explained that "[p]ast development has eliminated suitable habitat for special-status species in upland areas," i.e., the areas for the proposed projects.
1000 Friends asserts the map demonstrates the Suisun song sparrow — identified as a special concern species by the Department of Fish and Wildlife — is potentially present on both project sites. We see no such indication. The report explained the sparrow was found in Southampton Bay and Suisun Marsh, not the project sites. Specifically, the marshland and exposed shoreline provided a suitable habitat for various special status plants and bird species. To the extent 1000 Friends again relies on the 2022 project opposition letter referencing a 2007 draft EIR to argue there is the potential for special status plant and animal species to occur, we disregard this reference for the same reasons previously set forth. And in any event, this alleged evidence does not indicate any protected species were located on either site, only that they had the potential to occur. In sum, we find the City's conclusion the project sites are not habitats for protected species is supported by substantial evidence. (Better Alternatives for Neighborhoods v.

Heyman, supra, 212 Cal.App.3d at pp. 672-673.) Consequently, its decision approving the projects was not an abuse of discretion. (Ibid.) 16 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 210 of 344 III.

Section 65913.4 requires developments be consistent with objective zoning standards, objective subdivision standards, and objective design review standards — "standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion" such as those in overlay zones, specific plans, and inclusionary zoning ordinances — in effect at the time the development is submitted to the local government, or at the time a notice of intent is submitted, whichever occurs earlier. (Id., subd. (a)(5).) The statute requires a local agency to approve a proposed development if it is "consistent with the objective planning standards" — that is, if "there is substantial evidence that would allow a reasonable person to conclude that the development is consistent with the objective planning standards." (Id., subds. (c)(1), (3).) 1000 Friends contends both projects are inconsistent with the objective planning and zoning requirements embodied in the Benicia Municipal Code and Arsenal Historic Conservation Plan (Conservation Plan).

Thus, the City abused its discretion by approving the projects for streamlined review. We disagree.

The Benicia Municipal Code specifies that commercial office districts are intended to "[p]rovide opportunities for residential development" on commercial development sites or "separate sites in certain commercial districts." (Benicia Mun. Code, § 17.28.010, subd. (A)(6).) They further "[e]nsure the provision of adequate off-street parking and loading facilities." (Id., subd. (A)(7).) But those districts are subject to certain land use regulations, including not permitting residential uses on the ground level. (Id., § 17.28.020.) 1000 Friends argues Jefferson Ridge — a proposed development of 121 condominium units within three-story buildings with off17 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 211 of 344 street parking, a multifamily residential use in a commercial office zoning district — violates Benicia Municipal Code provisions prohibiting groundlevel residential development in commercial districts. Citing to nothing in the record, 1000 Friends argues the private, attached garages on the ground level of these condominiums are for residential use since they will be used for storage and weight training, in addition to parking. And even if some of the ground-level garage space is used for parking, it is nonetheless part of the private multifamily residential use.

No. Like statutes, we independently review municipal ordinances. (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434.) But we defer to the City's interpretation of its own ordinance " `unless it is clearly erroneous or unauthorized.' " (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193 [describing standard for deference to an agency's interpretation of its own regulations].) We afford greater deference to an agency's interpretation where, as here, " `the agency has expertise and technical knowledge,' " regarding zoning requirements " `especially where the legal text to be interpreted is . . . entwined with issues of fact, policy, and discretion.' " (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Ca1.4th 1, 12.) The " `agency is likely to be intimately familiar with regulations it authored and sensitive to the practical implications of one interpretation over another.' " (Ibid.) Deference is also appropriate if there are indications "the agency's interpretation is likely to be correct." (Id. at pp. 12-13.)
In 2005, the City interpreted parking as an accessory use and therefore authorized in a commercial zoning district despite placement on the ground level. (Benicia Mun. Code, § 17.28.020 [identifying "[a]ccessory use[]" as "use classifications permitted on the site of a permitted use, but requiring a use 18 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 212 of 344 permit on the site of a conditional use" in commercial office districts].) Deference to this interpretation is appropriate. The restrictions on residential uses in commercial districts are intertwined with issues of " `fact, policy, and discretion' " regarding zoning ordinances and the impact to those areas. (Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Ca1.4th at p. 12.) "Moreover, the City is familiar with the rationale for the ordinance, is responsible for its implementation, and has special knowledge about the `practical implications' of possible interpretations." (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896, fn. omitted.) There are also "indications of careful consideration by senior agency officials" regarding this interpretation. (Yamaha, at p. 13.) The city council adopted this interpretation after considering an appeal involving, in part, the development of proposed construction of residential units with garages on the ground level in a commercial district. It was not an interpretation contained in " can advice letter prepared by a single staff member.' " (Ibid.) Nor is there any indication in the record that the City has vacillated on this interpretation — it is the same interpretation the City proffers here on whether parking in a garage attached to a residential unit is appropriate under commercial zoning district regulations. (Ibid.) Accordingly, Jefferson Ridge's proposed garages on the ground level do not violate the City's objective standards.

Next, 1000 Friends contends both projects are inconsistent with objective standards for preserving historic sight lines. According to the Conservation Plan, a view corridor is a cone of vision originating from a specific point along a roadway. Sight lines are narrow corridors defined by a straight line originating from a specific point and terminating at a given feature or building. The plan adopted policies to "[m]aintain designated sight 19 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 213 of 344 lines to landmark building," and where "view corridors are indicated, it is important to maintain a direct sight line to all landmark structures and important natural features which fall within the view angle." (Italics omitted.) The policies expressly authorize new development within designated view corridors, noting simply that it "should be of a scale that will not overpower or dominate views of landmarks." (Italics omitted.) In addition, the Conservation Plan identifies special review areas, which includes the National Register of Historic Places — "four distinct historic districts of national significance" listed on the National Register in 1976. The special review areas were designated "to ensure that the landscape features, views and physical settings of historic buildings" are "maintained to the maximum extent feasible." According to the Conservation Plan, communities that receive federal assistance must "consider the effects of projects on these districts." Relevant here, the plan identifies "[s]ignificant view corridors and sight lines . . . found both within the Arsenal and from point outside." Among them are view 6 — a sight line from Jefferson Street at "Business Park Entry Road" to the former Guardhouse and water beyond.

It further identifies the Arsenal District as a "National Register Historic District."
The City determined Jefferson Ridge and Park Road were consistent with these standards. Rogal performed a visual impact study of Jefferson Ridge based on coordinates provided by the objective standards in the Conservation Plan. A photo simulation of several views of Jefferson Ridge — superimposing the proposed development as seen from the precise vantage points identified in the Conservation Plan — reflect that the proposed development maintained direct sight lines to landmark buildings. For example, the shop buildings and Martinez hills beyond remain viewable from 20 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 214 of 344 view 5 in the Conservation Plan. The Commandant's Quarters, Clocktower Building, and Promontory — all identified within the view 10 in the Conservation Plan — likewise remain visible. The photo simulation similarly depicts the Guardhouse within the view corridor from view 6 in the Conservation Plan. (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 247.) "This evidence is more than adequate to support the City's conclusion—indeed, any reasonable person's conclusion—that the project[s]" comply with objective standards in the Conservation Plan. (Save Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116, 1127.)
1000 Friends's arguments disputing this conclusion fail to persuade.

First, it argues Jefferson Ridge would block all views of the water beyond the Guardhouse. This ignores the standard of review. It is difficult to identify the natural features present in the Conservation Plan pictures taken from those vantage points, and we do not resolve conflicts in the evidence as we lack the power " `to judge the intrinsic value of the evidence or to weigh it.' " (California Oak Foundation v. Regents of University of California, supra, 188 Cal.App.4th at p. 247; Perry v. Stuart (2025) 111 Cal.App.5th 472, 500.) Moreover, in these circumstances, we implement section 65913.4 "in a manner to afford the fullest possible weight to" the "approval and provision of, increased housing supply." (§ 65913.4, subd. (u).)
Second, citing only a map identifying special review areas and an illustration of views from historic buildings, 1000 Friends asserts "both developments will disrupt the current views and sight lines within the Special Review Areas district boundaries denoted in Figure 7" of the Conservation Plan. As a preliminary matter, we question whether this standard — "maximum extent feasible" — is objective, as it appears to 21 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 215 of 344 "inherently require personal interpretation and subjective judgment." (Save Livermore Downtown v. City of Livermore, supra, 87 Cal.App.5th at p. 1128.) More importantly, leaving aside 1000 Friends's failure to compare those illustrations to the views resulting from proposed projects, nothing in the Conservation Plan prohibits disrupting current views and sight lines. Its purpose is to ensure "that the landscape features, views and physical settings of historic buildings" are "maintained to the maximum extent feasible." 1000 Friends's conclusory statement fails to demonstrate the projects do not satisfy this requirement.

Finally, we do not consider 1000 Friends's assertion that the developers made no effort to assess the impacts of the proposed developments on the distinct historic districts as required under the Conservation Plan — an argument it forfeited on appeal by failing to raise it below. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.) In any event, it concedes the requirement to consider project impacts is ambiguous.

We cannot discern — and 1000 Friends fails to explain — how this requirement is an "objective standard" that proposed developments must satisfy. (Save Livermore Downtown v. City of Livermore, supra, 87 Cal.App.5th at p. 1128.)
In sum, there was substantial evidence that would allow a reasonable person to conclude the developments are consistent with objective planning standards, and the City's determinations were not entirely lacking in evidentiary support. (§ 65913.4, subd. (c)(3).) Given this conclusion, we will not vacate the trial court's order denying the petition for a writ of mandate. (Ruegg, supra, 63 Cal.App.5th at p. 298.) Nor need we address 1000 Friends's argument that the City violated CEQA by failing to prepare an EIR 22 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 216 of 344 prior to approving the developments. The projects were properly approved under section 65913.4.

IV.
1000 Friends contends it was entitled to but denied the right to appeal the City's decisions approving the projects to a local governing body under Public Resources Code section 21151. Under that provision, if "a nonelected decisionmaking body of a local lead agency" determines that "project is not subject to [CEQA]," that "determination may be appealed to the agency's elected decisionmaking body." (Pub. Resources Code, § 21151, subd. (c).) Having independently reviewed this issue of law, we disagree.

Section 65913.4 expressly provides that a "determination of whether an application for a development is subject to the streamlined ministerial approval process" is "not a `project' as defined" under CEQA. (§ 65913.4, subd. (o); Pub. Resources Code, § 21065 [defining "[p]roject" under CEQA, in part, as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment"].) CEQA further provides that it "does not apply" to "[m]inisterial projects proposed to be carried out or approved by public agencies." (Pub. Resources Code, § 21080, subd. (b); City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1421.) Ministerial projects involve "only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out." (Cal. Code Regs., tit. 14, § 15369; Mountain Lion Foundation v. Fish & Game Corn. (1997) 16 Ca1.4th 105, 117.) As 1000 Friends concedes, a proposed development's eligibility for ministerial review under section 65913.4 is based on "a long list of objective standards." Harmonizing these statutes is thus unnecessary because there is 23 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 217 of 344 no inconsistency between the two. (State Dept. of Public Health v. Superior Court (2015) 60 Ca1.4th 940, 955.) Under both section 65913.4 and CEQA, Public Resources Code section 21151— part of CEQA — does not apply to the determination that a development is subject to the section 65913.4 approval process at issue here.

This reading comports with the legislative history of section 65913.4. (Becerra v. Superior Court (2020) 44 Cal.App.5th 897, 920 [examining the legislative history " `to confirm our plain-meaning construction of [the] statutory language' "].)2 Senate Bill No. 765 (2017-2018 Reg. Sess.) amended that provision to ensure "that an application for an SB 35 development is not a `project' as defined in CEQA and therefore shall not trigger a CEQA review." (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 765 (2017-2018 Reg. Sess.) Stats. 2018, ch. 840, § 2, Aug. 31, 2018, p. 6.) Guidelines promulgated by the Department of Housing and Community Development — noting that CEQA does not apply to the "determination of whether an application for a development is subject to the Streamlined Ministerial Approval Process" — confirms our reading. (§ 65913.4, subds. (m)(3) [" `Department' means the Department of Housing and Community Development"], (n) ["The department may review, adopt, amend, and repeal guidelines to implement uniform standards or criteria that supplement or 2 During the briefing of this appeal, Rogal asked us to take judicial notice of the petition for peremptory writ of mandate and legislative history of Senate Bill Number 35. We deferred ruling on this unopposed motion, which we now deny as unnecessary. The petition is available in the appellate record, and motions for judicial notice of published legislative history are unnecessary. (Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 Cal.App.4th 654, 665, fn. 4.) " `Citation to the material is sufficient.' " (Ibid.)
24 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 218 of 344 clarify the terms, references, or standards set forth in this section"]; Western Oil & Gas Assn. v. Air Resources Board (1984) 37 Cal.3d 502, 520 ["contemporaneous construction of a statute by an administrative agency charged with its enforcement, the [agency's] view is entitled to great weight"].) 1000 Friends's assertion that a determination a proposed development qualifies "for ministerial review is precisely the type of determination made subject to" an appeal under Public Resources Code section 21151 has no merit. The Legislature expressly placed that determination beyond the purview of CEQA and its administrative appeal provision.

None of 1000 Friends's cited authorities alter this conclusion. Notably, McCorkle Eastside Neighborhood Group v. City of St. Helena, supra, 31 Cal.App.5th at page 80 addressed an administrative appeal from a determination that a proposed project fell within an infill exemption under CEQA guidelines and was thus exempt from CEQA review. (McCorkle, at pp. 86, 91-92.) There was no determination that project opponents were entitled to an appeal under Public Resources Code section 21151. Rather, the court noted the opponents appealed the planning commission's decision regarding the CEQA exemption, as well as the demolition and design review permit approvals as appealable to the city council under various provisions of the city's municipal code. (McCorkle, at p. 87, fn. 2.) In California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, which addressed issues related the Housing Accountability Act, the court determined an " `action involving only the nondiscretionary application of objective standards' does not entitle neighboring landowners" to the traditional due process protections of notice and opportunity to be heard before a project's approval. (California 25 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 219 of 344 Renters, at p. 853.)
We reject 1000 Friends's additional argument that, in the absence of administrative rather than judicial review, the governing body would be "compelled to approve a development project based solely on unsupported consistency findings or the discretion of its planning director or equivalent." Like the court in California Renters, we "are untroubled by" its suggestion that if a "member of the governing body opines that a project complies with objective standards then the local agency would be compelled to find it so." (California Renters Legal Advocacy & Education Fund v. City of San Mateo, supra, 68 Cal.App.5th at p. 852.) As 1000 Friends acknowledges, section 65913.4 requires consistency determinations to be supported by substantial evidence. (§ 65913.4, subds. (c)(1), (3).) Substantial evidence is evidence that is " ` "reasonable in nature, credible, and of solid value" and " `substantial' proof of the essentials which the law requires in a particular case." ' " (California Renters, at p. 852.) Section 65913.4 further applies an objective standard — that "there is substantial evidence that would allow a reasonable person to conclude that the development is consistent with the objective planning standards." (§ 65913.4, subds. (c)(1), (3); California Renters, at p. 852.) "There is thus no basis for concern that section [65913.4] would require project approval based solely on the unsupported opinion of a single person, or on evidence that a reasonable person would not find credible and persuasive." (California Renters, at p. 852.)

DISPOSITION
The judgment is affirmed. The City and real parties in interest are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a).) 26 Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 220 of 344 RODRIGUEZ, J.

WE CONCUR:

FUJISAKI, Acting P. J.

PETROU, J.

A172005; 1000 Friends Protecting Historic Benicia v. City of Benicia Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 221 of 344

EXHIBIT H
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 222 of 344 July 1, 2026
Chris Sullivan
River Landon LLC
PO Box 29281
San Francisco, CA 94129
Via Email: [email protected]
Electronic Mail Delivery Only
Re: Coleman Drive Residential Project – Response to Challenged Conduct Letter
Dear Mr. Sullivan,
The purpose of this letter is to respond to the Notice of Course of Conduct delivered to the City on April 2, 2026 (“Challenged Conduct Letter”). Pursuant to Government Code section 65589.5(h)(6)(E)(ii), the City posted it and during that time period, received a comment on April 28, 2026, from the California Defense Fund (“HDF”). This letter also addresses concerns raised by HDF’s letter.

I. INTRODUCTION
The Challenged Conduct Letter asserts that the City engaged in a “course of conduct undertaken for an improper purpose” in processing the Project application and thereby violated SB 35 (Gov. Code § 65913.4) and the Housing Accountability Act (Gov. Code § 65589.5) (“HAA”). As detailed in this “Response to Challenged Conduct Letter” and in Attachment 1 hereto, the City acted in good faith and in accordance with state law in processing the Project applications. The assertions in the Challenged Conduct Letter are baseless; none of the City’s actions constitute “disapprov[al] [of] the housing development project” as defined by Section 65589.5(h)(6)(E).

As discussed further below, the City provided timely responses to each Project submittal.

After correctly determining that the Project did not meet the statutory criteria to qualify for processing under SB 35, the City attempted to work with Applicant to process and potentially approve the Project under alternative legal pathways. After two rounds of consistency review and multiple meetings between Applicant and City staff, Applicant informed the City that it would not revise the Project application to qualify for SB 35 or Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 223 of 344 4931-3404-4597 v7 Page 2 | 11
any other potential approval pathway. Given the lack of any possible path to legally approve the Project application pursuant to SB 35, the City properly denied the application on December 3, 2025.1
II. BACKGROUND
On May 15, 2023, River Landon LLC (“Applicant”) submitted an SB 330 preliminary application for a 29-unit housing development project (the “Project”) located on vacant lots with Assessor’s Parcel Numbers (“APN”) 011-031-44, 45, 46, 47, 48, & 49 (“Project Site”) on Coleman Drive in the City of San Rafael (“City”). On November 9, 2023, Applicant submitted application materials invoking Government Code Section 65913.4 et seq. (“SB 35”). The City engaged in tribal consultation consistent with the requirements of SB 35. On June 30, 2025, the City, Applicant, and the Federated Indians of Graton Rancheria (“FIGR”) entered into an enforceable agreement, and on the same date the development application on file with the City was deemed “submitted” as a matter of law. (Gov. Code § 65913.4, subds. (b)(1)(A)(i) and (b)(1)(A)(ii) [tribal consultation must occur before submission of an SB 35 application], and subd. (b)(2)(D)(i) [execution of an enforceable agreement concludes tribal consultation].)
The City timely and properly determined that the 29-unit Project application did not qualify for ministerial approval under SB 35. By letter dated August 27, 2025, attached hereto as Attachment B, the City timely and properly identified Project inconsistencies with objective planning standards, in accordance with subdivision (c)(1)(A) of Government Code section 65913.4. Applicant definitively refused to modify the Project so that it could be approved under SB 35, or other authority. By letter dated September 28, 2025, attached hereto as Attachment C, the City timely notified Applicant that it disapproved the Project because it was not a multifamily housing development eligible for ministerial approval pursuant to SB 35. (Government Code section 65913.4(d) allows for a 90 day review period for determinations where design review may apply, which it does, pursuant to Section 14.165.245 of the San Rafael Municipal Code.

Meanwhile, Applicant submitted application-related documents proposing a 14-unit project (“Alternative Project”), which the City determined also did not qualify for ministerial approval under SB 35 because it was not a multifamily housing development project. This determination was communicated by letters dated October 6 (attached hereto as Attachment D) and December 3, 2025 (attached hereto as Attachment E) , the latter of which stated, inter alia:

As set forth in the City’s October 6, 2025 correspondence, which is attached hereto, the Project remains inconsistent with multiple City objective zoning standards, objective subdivision standards, and objective design review standards. Additionally, the Project is 1 While the City properly denied the application, there are several potential successful pathways the applicant could pursue towards an approval of a housing project, as the City has consistently explained, such as SB 9 of 2021 (ministerial approval process for lot splits and qualified single-family home projects).

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 224 of 344 4931-3404-4597 v7 Page 3 | 11
inconsistent with provisions of State law. The Project is hereby denied based on the inconsistencies identified in the October 6, 2025 correspondence.
* * *
The Project is ineligible for the streamlined ministerial approval process set forth in Government Code section 65913.4 et seq. (“SB 35”) because the project is not a “multifamily housing development.” (Gov. Code § 65913.4(a)(1); see also HCD
Guidelines § 102(p).)
On March 20, 2026, Applicant attempted to submit the third iteration of the project, which appears to the City to consist of a 9-unit Residential Development with 3 accessory dwelling units (“Revised Project”). Although the Revised Project was not formally submitted to the City – it was submitted via email to a City employee, instead of through the City’s application portal – the City nonetheless conducted a courtesy completeness review. In a letter dated April 17, 2026, the City notified the Applicant that the March 20, 2026 email submission was incomplete..

III. THE CITY DID NOT ENGAGE IN A COURSE OF CONDUCT
UNDERTAKEN FOR AN IMPROPER PURPOSE.

On April 2, 2026, Applicant submitted the Challenged Conduct Letter alleging the City had “disapprove[d] the housing development project,” as that term is defined in Government Code Section 65589.5(h)(6), by engaging in “a course of conduct [. . .] for an improper purpose [. . .] that effectively disapproves the proposed housing development without taking final administrative action.” (Gov. Code 65589.5(h)(6)(E).) The Challenged Conduct Letter ignores the fact that the City took final administrative actions on September 28 and December 3, 2025 to deny the Project and Alternative Project, thereby “disapprov[ing] the housing development project” as defined by Government Code Section 65589.5(h)(6)(A).

As it is clear that the City took final administrative action, the Housing Accountability Act (“HAA”) does not require the City to issue a response to the Challenged Conduct Letter.

Nevertheless, the City is providing this response in an abundance of caution and as a courtesy.

The City complied with the procedures established in Government Code section 65589.5(h)(6)(E), including as discussed below:
• Within five working days of receiving the Challenged Conduct Letter, the City posted the required notice on the City's internet website, provided a copy of the notice to any person who had made a written request for notices, and filed the notice with the county clerk. (See Gov. Code § 65589.5(h)(6)(E)(ii).) The Challenged Conduct Letter and notices were available for at least 60 days prior to this determination.

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• After posting the notice, the City received public comments regarding the Project. The City has considered all objections, comments, evidence, and concerns about the Project and the Challenged Conduct Letter. (See Gov. Code § 65589.5(h)(6)(E)(iii).) • This letter serves as the written findings pursuant to Government Code section 65589.5(h)(6)(E)(iv), that (I) articulate an objective basis for why the challenged course of conduct is necessary and (II) provide clear instructions on what must be submitted or supplemented so that the City can make a final determination regarding the next necessary approval.

A. The City’s Challenged Course of Conduct was Necessary (Gov. Code § 65589.5(h)(6)(E)(iv)(I))
The City finds that its course of conduct does not constitute a disapproval without final administrative action and that the challenged course of conduct was necessary.

The bases of the alleged Project disapproval identified in the Challenged Conduct Letter fall into three main categories: (1) the City did not comply with SB 35 and HAA provisions regarding consistency determinations; (2) the City improperly determined that the Project is ineligible for processing under SB 35; and (3) the City did not comply with the State Density Bonus Law (“SDBL”). For the reasons described herein and in Attachment 1, none of the alleged bases has merit.

1. The City Complied with SB 35 and HAA Provisions Regarding Consistency Determinations
(a) The City’s Consistency Reviews Were Timely
At all points during the processing of the application for approval of the Project and Alternative Project, the City timely issued the determinations required by various state housing laws and complied with all provisions of such laws. Per SB 330, an applicant for a housing development project may submit a preliminary application by submitting the information specified in Government Code section 65941.1. State law does not require cities to issue any determination in response to receipt of a preliminary application. (Gov.

Code § 65941.1(e)(3); see Gov. Code § 65941.1.) Within 180 days of submitting a preliminary application, an applicant must submit a full development application in order to “perfect” the vesting of a complete preliminary application. (Gov. Code § 65941.1(e)(1).) If an applicant invokes SB 35, a city must engage in specified tribal consultation procedures. (Gov. Code § 65913.4(b).) An SB 35 development application is deemed submitted only after the tribal consultation process concludes. (Gov. Code § 65913.4, subds. (b)(1)(A)(i) and (b)(1)(A)(ii) [tribal consultation must occur before submission of an SB 35 application], and subd. (b)(2)(D)(i) [execution of an enforceable agreement concludes tribal consultation].) Once an SB 35 development application is submitted, a city has 60 days (for projects of less than 150 units) to determine whether the proposed housing development project is in conflict with any of the objective planning standards specified in SB 35, including whether the proposed project is in conflict with local objective development standards. (Gov. Code § 65913.4(c)(1)(A).) If the city Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 226 of 344 4931-3404-4597 v7 Page 5 | 11
determines that a development application is inconsistent with the requirements of SB 35, the applicant may resubmit the development application, at which point a new 30-day consistency determination period begins. (Gov. Code § 65913.4(c)(1)(C).) The City complied with all of the statutory deadlines.

Applicant submitted a preliminary application for the Project on May 15, 2023. The Project application was deemed submitted on June 30, 2025 upon the execution of an enforceable agreement between the City, Applicant, and FIGR. On August 27, 2025, 58 days after the June 30, 2025 submission of the Project application, the City timely issued a written determination that the proposed Project was inconsistent with the objective planning standards specified in SB 35, including written documentation of which standards the Project conflicted with and an explanation of the reasons the Project conflicted with such standards. (Gov. Code § 65913.4(c)(1)(A).) By letter dated September 28, 2025, the City timely notified Applicant that it disapproved the Project because it was not subject to ministerial approval pursuant to SB 35, in accordance with the 90-day deadline of subdivision (d) of Government Code section 65913.4.

On September 6, 2025, Applicant submitted application materials for the Alternative Project. On October 6, 2025, 30 days after the September 6, 2025 resubmission, the City timely issued a written determination the Alternative Project proposal continued to be inconsistent with the objective planning standards specified in SB 35 and the City’s municipal code, in accordance with the requirements of SB 35. (Gov. Code § 65913.4(c)(1)(C).) By letter dated December 3, 2025, the City timely notified Applicant that it disapproved the Alternative Project because it was not subject to ministerial approval pursuant to SB 35, in accordance with the 90-day deadline of subdivision (d) of Government Code section 65913.4.

Instead of formally submitting a new development application for a new project, on March 20, 2026, Applicant emailed a revised plan set to City staff for the Revised Project.

Although the Revised Project was not formally or properly submitted to the City via eTrakit, the City’s online development application portal,2 out of an abundance of caution and as a courtesy, the City evaluated the revised plan set for completeness. In a letter dated April 17, 2026, the City notified the Applicant that the March 20, 2026 email submission was incomplete.
2 All development application materials must be submitted via the City’s eTrakit portal. See https://epermits.cityofsanrafael.org/ETRAKIT3/Search/permit.aspx. Applicant had indeed previously submitted plans and development application materials via eTrakit, and for unknown reasons did not do so for the Revised Project.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 227 of 344 4931-3404-4597 v7 P age 6 | 11
(b) The City Completed Its Consistency Reviews for the Project and Alternative Project In Good Faith and in Accordance with State Law
The Challenged Conduct Letter claims that the City’s August 27, 2025 and October 6, 2025 determinations that the proposed Project and Alternative Project, respectively, were inconsistent with SB 35 and specified local objective development standards were improper for the reasons described in Exhibit A to the Challenged Conduct Letter.

An SB 35 consistency determination analyzes whether a project “is in conflict with any of the objective planning standards specified in subdivision (a) [of SB 35],” including local objective development standards. (Gov. Code § 65913.4(c)(1).) If a city identifies any conflicts, the city “shall provide the development proponent written documentation of which standard or standards the development conflicts with, and an explanation for the reason or reasons the development conflicts with that standard or standards.” An SB 35 project is subject only to the objective zoning standards, objective subdivision standards, and objective design review standards in effect at the time that the development application is submitted to the local government pursuant to this section, or at the time a notice of intent is submitted pursuant to subdivision (b), whichever occurs earlier. (Gov.

Code § 65913.4(a)(5).) Moreover, SB 35 limits cities’ discretion to impose any development standards that are not “objective,” meaning that they “involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official before submittal.” (Gov. Code § 65913.4(a)(5).) The receipt of a density bonus, incentive, concession, or waiver, pursuant to the SDBL does not constitute a valid basis on which to find a project inconsistent with applicable objective standards. (Gov. Code §§ 65589.5(j)(3), 65905.5(c)(1).)
The August 27, 2025 inconsistency determination identified sixty (60) aspects in which the Project was inconsistent with SB 35 and applicable objective standards. The October 6, 2025 inconsistency determination identified forty-six (46) aspects in which the Alternative Project submitted on September 6, 2025 was inconsistent with SB 35 and applicable objective standards. The Challenged Conduct Letter appears to take issue with some, but not all, of the City’s comments in each of these inconsistency determinations. Attachment 1 to this letter addresses each of Applicant’s assertions regarding these inconsistency determinations. the comments Applicant provided in Exhibit A to the Challenged Conduct Letter. For the reasons explained in Attachment 1, the City completed its consistency review in good faith an in accordance with state law.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 228 of 344 4931-3404-4597 v7 Page 7 | 11

2. The City Properly Determined the Project and Alternative Project were Ineligible for Processing under SB 35
The Challenged Conduct Letter asserts that the City is committing “ongoing violations of SB 35” and Exhibit A to the Challenged Conduct Letter lists various alleged violations of SB 35.

SB 35, codified at Government Code section 65913.4, requires that cities follow specified ministerial processing procedures for projects meeting specified criteria. For a project to qualify for ministerial processing under SB 35, the project must be “a multifamily housing development that contains two or more residential units.” (Gov. Code 65913.4(a)(1).) SB 35 does not define “multifamily,” but HCD3 has defined “multifamily” for purposes of SB 35:
“Multifamily” means a housing development with two or more attached residential units. This includes mixed-use projects as stated in Section 400(a). The definition does not include accessory dwelling units unless the project is for new construction of a single family home with attached accessory dwelling units. Please note, accessory dwelling units have a separate permitting process pursuant to Government Code section 65852.2 [repealed; see instead Cal. Gov’t Code § 66310 et seq., including § 66313]. (HCD Guidelines § 102(p).) This is consistent with other definitions of “multifamily” housing in California law. (E.g., Gov. Code §§ 65863.4(d), 65852.25(h), 12955.1.1; Health & Saf. Code §§ 51603(b)(9), 17929(b)(4).) The Project and Alternative did not propose housing with attached units; rather, the Project and the Alternative Project proposed to develop multiple detached single-family homes and ADUs. Thus, neither project is a “multifamily housing development” project.

Immediately below is a portion of the Site Plan Applicant submitted with its Alternative Project submittal, which shows unattached single-family homes on separate lots (or parcels):
3 SB 35 provides that HCD “may review, adopt, amend, and repeal guidelines to implement uniform standards or criteria that supplement or clarify the terms, references, or standards set forth in this section.” (Gov. Code § 65913.4(n).) The Guidelines have technically sunsetted (as HCD set them to expire on January 1, 2026, which was SB 35’s sunset date, and has yet to take action since the Legislature extended SB 35’s sunset date. But the Guidelines interpretative value is unaffected by their having technically sunsetted, including because they were in effect at all relevant times and HCD has not disavowed or otherwise acted to suggest they have lost any interpretive value.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 229 of 344 4931-3404-4597 v7 Page 8 | 11
Further, in both the August 27, 2025 and October 6, 2025 inconsistency determinations, the City explained that the Project and Alternative Project do not qualify for processing under SB 35 because the proposed projects were not multifamily housing developments. (See, August 27, 2025 inconsistency determination, p. 4; October 6, 2025 inconsistency determination, p. 3.) Acting in good faith and to encourage the development of housing, the City also explained to Applicant in a November 8, 2025 meeting between Applicant’s representative Chris Sullivan and City staff that while the proposed project does not qualify for processing or approval under SB 35, there are other paths through which housing could potentially be approved on the site. (Applicant’s Notes from November 8, 2025 meeting with City staff, p. 5; December 3, 2025 denial letter, p. 3.) Applicant declined to pursue any other legal paths for developing housing on the Project site. (Applicant’s Notes from November 8, 2025 meeting with City staff, p. 5 [“I [applicant] informed [the City] that I was aware of those [alternative to SB 35] processes, and did not plan to resubmit under those processes.”] Applicant also indicated they would not revise the project to qualify for SB 35. Accordingly, there being no legal pathway to approve the Alternative Project as proposed, the City denied the Alternative Project on December 3, 2025.

Applicant claims that the City violated SB 35 and/or the HAA by “[r]epresenting that the [C]ity can end the processing of an SB 35 project by issuing a denial letter.” (Challenged Conduct Letter, Exhibit A, Item 26.) Taking this argument to its logical conclusion, Applicant seems to suggest an SB 35 application can never be denied, and that a city must indefinitely hold open an SB 35 application until it can be approved. Such a reading of SB 35 would mean the only way to close an SB 35 application is to approve it.

Applicant does not cite, and the City is unaware of, any authority to support such assertion and reading of State law. Rather, courts have described SB 35 as “restricting” or “limiting,” but not completely eliminating, cities’ ability to deny housing development applications. (California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 839; Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 299.) Additionally, the language of SB 35 itself makes clear that a city may indeed deny an SB 35 application where the requirements for approval have not been met. (See Gov. Code § 65913.4(a)(6)(G), (a)(6)(H).) Thus, as here, when a housing development application does not qualify for approval under SB 35 and an applicant does not revise the development application, it is proper and required that the city deny the application.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 230 of 344 4931-3404-4597 v7 Page 9 | 11
The City’s determination that the Project is ineligible for SB 35 was necessary because such determination was required by State law.4 (E.g., Gov. Code § 65913.4(c)(1).) Because such determination was not made for an improper purpose, the City did not improperly “disapprove the [Project]” as defined by Section 65589.5(h)(6)(E). Rather, the City properly “disapprove[d] the [Project]” as defined by Section 65589.5(h)(6)(A) by issuing the December 3, 2025 denial letter. Such denial was proper because the Project does not qualify for approval under SB 35 and Applicant indicated they would not revise the Project application such that it could be approved.

3. The City Complied with the State Density Bonus Law
The Challenged Conduct Letter implies that the City violated state laws regarding the receipt of waivers, incentives, and concessions under the State Density Bonus Law by not approving the requested waivers, incentives, and concessions some time before issuing a final decision on the Project application. (Challenged Conduct Letter, Exhibit A, Item 24.) The Challenged Conduct Letter misstates the requirements of state law.

Neither the State Density Bonus Law (“SDBL,” Gov. Code § 65915) nor any other state law requires a city to ignore the fact that a project is, in fact, inconsistent with applicable standards. Rather, state law requires that cities treat projects as consistent with applicable standards as a matter of law for the purposes of deciding whether to approve or deny a proposed project if such inconsistency is resolved by the receipt of a waiver, incentive, or concession under the SDBL. (E.g., Gov. Code §§ 65905.5(c)(1); 65589.5(j)(3).) In other words, state law limits a city’s ability to deny a project even though the project is, in fact, inconsistent with applicable standards, if such inconsistency is subject to a SDBL waiver, incentive, or concession.

Moreover, nothing in the SDBL or any other state law requires a city to approve or deny requested SDBL waivers, incentives, and concessions at any time before a project is considered and approved. Moreover, where local laws require that a particular staff position or legislative body hear and approve or deny an application for a development project, it would be improper and inconsistent with such local laws for a non-decision making body or person to approve or deny requested waivers, incentives or concessions.

Additionally, neither the SDBL nor any other state law specifies a deadline by which an applicant’s SDBL waiver, incentive, and concessions requests become fixed. As a matter of practice, applicants routinely modify their SDBL waiver, incentive, and concession requests until even the day that a city decides whether to approve or deny a project.

Accordingly, it is critical and required that cities approve or deny SDBL waivers, 4 Several of the comments from a letter dated April 28, 2026 from CalHDF are premised on the Project and the Alternative Project being eligible for approval under SB 35. Based on the analysis contained herein, those comments are inapplicable because the Project and Alternative Project are not eligible for SB 35 as discussed herein. The remainder of the comments submitted by CalHDF are duplicative to the comments raised by the Applicant in the attachment to its Notice of Conduct Letter, and to which the City addresses in Attachment 1 to this letter.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 231 of 344 4931-3404-4597 v7 P age 10 | 11
incentives, and concessions concurrently with the final decision on a development project.

The HAA strongly incentivizes these processing practices. The HAA requires that cities identify any inconsistencies between a proposed project and any applicable plan, program, policy, ordinance, standard, requirement, or other similar provision within 30 or 60 days of the date that the development application is deemed complete, depending on the number of units. (Gov. Code § 65589.5(j)(2)(A).) If a city does not identify an inconsistency in fact with a particular standard before the applicable deadline, the proposed project is deemed consistent with such standard as a matter of law. (Gov. Code § 65589.5(j)(2)(B).) Combined with the fact that an applicant may modify its SDBL wavier, incentive, and concession requests at any time before a project is approved, a city must identify inconsistencies in fact – even when the City recognizes that an SDBL waiver, incentive, or concession may ultimately require a finding of consistency as a matter of law – in order to preserve the city’s right to enforce such standard if the applicant later revises its SDBL request.

Here, the August 27, 2025 inconsistency determination for the Project identified sixty (60) aspects in which the Project was inconsistent with SB 35 and applicable objective standards. For ten (10) inconsistencies, the City identified and acknowledged that the applicant had requested a waiver pursuant to the SDBL. The October 6, 2025 inconsistency determination for the Alternative Project identified forty-six (46) remaining aspects in which the Alternative Project was inconsistent with SB 35 and applicable objective standards. For five (5) inconsistencies, the City identified and acknowledged that the applicant had requested a waiver pursuant to the SDBL. The City did not request that Applicant revise the development application for those items in which applicant sought to utilize SDBL waivers, incentives or concessions. The City recognized that pursuant to Government Code section 65589.5(j)(3), projects features which were inconsistent with applicable City development standards would not be considered inconsistent as a matter of law if the requested waivers, incentives or concessions were later approved. (Gov. Code § 65589.5(j)(3).)
The City acted properly in identifying the Project’s inconsistencies in fact with applicable standards, while noting that Applicant had requested SDBL waivers, incentives, or concessions from specified standards. Because both inconsistency determinations identified inconsistencies for which no SDBL waiver, incentive or concession was requested, it was proper for the City to determine that the Project was inconsistent with applicable standards, both in fact and as a matter of law.

B. Next Steps for the City to Make a Final Determination Regarding any Next Necessary Approval (Gov. Code § 65589.5(h)(6)(E)(iv)(II)) As explained above, the City timely and properly denied the application for approval of the Project and Alternative Project.

In order to secure an approval to develop housing on the Project Site, Applicant would need to submit a new and complete housing development application via eTrakit or Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 232 of 344 4931-3404-4597 v7 Page 11 | 11
submit the Revised Project via eTrakit including all aspects which were previously identified by the City as incomplete. As the City has previously indicated, the City believes there may be multiple pathways to securing approvals for housing development on the Project Site. The City specifically communicated to the Applicant that it would work with the Applicant to evaluate consistency of the proposed project pursuant to SB 9, SB 684 or other laws, or by submitting a project application that meets the requirements for streamlined ministerial processing of SB 35.

IV. CONCLUSION
The City did not “disapprove [a] housing development project” as defined by Section 65589.5(h)(6)(E) by undertaking a course of conduct for an improper purpose that effectively disapproves the proposed housing development without taking final administrative action. Rather, the City properly “disapprove[d] the [Project]” as defined by Section 65589.5(h)(6)(A) by taking final administrative action, as required by SB 35.

As established above, the City acted lawfully, in compliance with all applicable law.

Should you have any questions, please contact me at [email protected] Sincerely,
Micah Hinkle
Director, Community and Economic Development Department Attachments:

Attachment A: Responses to Exhibit A of Challenged Conduct Letter Attachment B: August 27, 2025 City inconsistency determination on Project Attachment C: September 28, 2025 City denial of Project Attachment D: October 6, 2025 City inconsistency determination on Alternative Project Attachment E: December 3, 2025 denial of Alternative Project cc:

Scott Birkey and Andrew Sabey, Attorneys for Applicant
[email protected], [email protected]
Margaret Kavanaugh-Lynch, Planning Manager
[email protected]
Andrea Visveshwara, Assistant City Attorney
[email protected]
Nira Doherty and Kevin Siegel, Outside Counsel
[email protected], [email protected]
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 233 of 344 4908-8412-7925 v4
Atta
c
h
m
e
nt A
R
esp
o
nse to
E
x
hibit A
of C
h
alle
n
g
e
d
C
o
n
d
u
ct L
ette
r
T
he followin
g table reflects the alleged challen
ged con
d
uct contained in
E
x
hibit A to the C
hallen
ged
Con
d
uct Letter, ad
din
g the City’s response to each alleged
violation
of law.

Alleged challenged con
d
uct: A
p
plicant alleges City sent/sen
ds
docu
mentation that states:

C
hallenged
Con
d
uct Letter states: City’s response
A
p
plyin
g
non-objective stan
dards to develop
ment
1 Refuse collection areas shall be
…located in areas con
venient to users
an
d collectors. T
here shall be
adeq
uate in
gress an
d egress to all
utilities.

T
hese are non-objective stan
dards. See Section I.A of Response to
C
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified this stan
dard from SR
M
C
Section 14.25.050 an
d
noted that the
ap
plication for the proposed
Project did
not contain enou
g
h information to enable
the City to analyze consistency
with this
stan
dard; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 14.)
O
n
October 1, 2025, Ap
plicant’s attorney
su
b
mitted com
mentary on the A
u
g
ust 27,
2025 inconsistency
determination. Such
com
mentary arg
ued that this stan
dard
was not objective an
d therefore not
enforceable. (October 1, 2025 Letter, p.36.)O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 9.)T he C
hallen
ged
Con
d
uct Letter provides
an excerpt from
40 Main Street Offices,
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 234 of 344 4908-8412-7925 v4
L
L
C v. City of
Los Altos in
w
hich the
court states that a stan
dard that req
uires
“adeq
uate access/egress” is su
bjective
an
d therefore u
nenforceable. T
he City
than
ks A
p
plicant for brin
gin
g this case to
the City’s attention.Were the Project’s ap
plication still
pen
din
g, the City
would
not seek to
enforce this stan
dard. Since the Project
ap
plication
was properly
denied on other
groun
ds (e.g., because the Project does
not q
ualify for SB 35), this com
ment is
moot.
2 Walls, etc. shall be used to screen
parkin
g an
d loadin
g areas from
view
T
his is a non-objective stan
dard.

W
hat percentage of view shall be
shielded, an
d from
w
hat an
gles, from
how far u
pslope?
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified this stan
dard from SR
M
C
Section 14.25.050 an
d
noted that the
ap
plication for the proposed
Project did
not contain enou
g
h information to enable
the City to analyze consistency
with this
stan
dard; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 14.)
O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary arg
ued
that the terms “from
view,” “integrated
architectural component, an
d
“incorporated into the overall projectdesig
n” are su
bjective terms an
d
therefore not enforceable. (October 1,2025 Letter, p. 36.)O n
October 6, 2025, the City issued an
inconsistency
determination that once
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 235 of 344 4908-8412-7925 v4
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 9.)To the extent that SRMC Section14.25.050 requires that a project includea wall, fence, or screen between parkingand loading areas and other areas;between refuse collection areas and otherareas; and between mechanicalequipment and other areas, the inquiry isa yes-or-no question: “do the plans depicta wall, fence, or screen?” Wall, fence,and screen are each objective terms.Thus, in this regard, this standard isenforceable.As noted in the August 27, 2025 andOctober 6, 2025 inconsistencydeterminations, the application materialsdo not contain enough information toenable the City to determine whether theProject includes the required walls,fences, or screens. Neither Applicant’sOctober 1, 2025 correspondence, theChallenged Conduct Letter, or any othersubmission from Applicant point to anyportion of the project application thatwould constitute substantial evidence ofcompliance with this standard. Thus, itwas proper for the City to determine thatthe Project is inconsistent with thisstandard.

Sending documentation/stating inconsistency by alleging standards are applicable that have no connection to the development submittal3 Structures may encroach into a required yard with a compensatingincrease subject to approval by thehearing body The applicant did not request any suchencroachment.

See Section I.A of Response toChallenged Conduct Letter.On August 27, 2025, the City issued aninconsistency determination thatidentified the following standard fromSRMC Section 14.12.030.B: “Structures Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 236 of 344 4908-8412-7925 v4
may encroach into a required
yard or
setback for a distance ofnot more than one-half (½) of thereq uired
yard or setback [. . .]
su
bject to ap
proval b
y the hearin
g
bod
y
of an en
viron
mental an
d
desig
n
review
permit. If such a red
uction is
granted, a com
pensatin
g increase in
setback is req
uired in the op
posin
g
setback, i.e., a five-foot reduction in afront yard setback would increase the
rear yard setback
b
y five feet (5').” T
he
inconsistency
determination also noted
that the setbacks show
n on the plans do
not meet this stan
dard on an
y
parcel.

Referencin
g SR
M
C Section 14.04.030,
the A
u
g
ust 27, 2025 inconsistency
determination
pointed out that the in the
R10 district, the minim
u
m side yard
setback is 10 feet, the minim
u
m rear
setback is 10 feet, an
d the minim
u
m front
setback is 20 feet, yet the Projectproposed
develop
ment with side yard
setbacks of ap
proximately 4 feet on all
lots, rear setbacks of ap
proximately 2.5
feet on all lots, an
d front setbacks of
between 2.5 feet an
d 9 feet 11 inches on
all lots. T
hese facts necessarily
mean that
the Project also inconsistent with Section14.12.030.B, even if the Project were toreceive the permissible encroach ment
into half of the setback area. Moreover,as the C
hallen
ged
Con
d
uct letter notes,
A
p
plicant never requested such
encroach
ment in the first place.

T
herefore, the letter stated that the
Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 10.)
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 237 of 344 4908-8412-7925 v4
O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised ap
plication
materials
that did
not resolve this inconsistency.
(See Sheet A.0.2.)O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary
did
not
directly ad
dress w
hether the Project
com
plied
with the req
uired setbacks,
instead
notin
g that even if the Project did
not comply
with the req
uired setback,
A
p
plicant had
not yet req
uested, b
ut
could req
uest, a waiver from this
stan
dard
u
n
der the State Density
Bon
us
Law. (October 1, 2025 Letter, p. 16.)O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 7.) Because A p
plicant
had
not revised the ap
plication to com
ply
with this stan
dard, it was proper for the
City to once again identify this as aninconsistency. Likewise, since A p
plicant
had
not req
uested a wavier of this
stan
dard
usin
g the SD
B
L, the October 6,
2025 consistency
determination
did
not
note that an
y SD
B
L
waiver req
uest had
been
made regardin
g this stan
dard.
4 Fences located
within the front an
d
streetside setbacks may
be 4 feet tall
etc. T
he plans do not contain enou
g
h
detail for the city to determine w
hether
the project com
plies with the fence
stan
dards at this time
No fences have been
proposed See Section I.A of Response to
C
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified this stan
dard from SR
M
C
Section 14.16.140 an
d
noted that the
ap
plication for the proposed
Project did
not contain enou
g
h information to enable
the City to analyze consistency
with this
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 238 of 344 4908-8412-7925 v4
stan
dard; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 14.)
O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised ap
plication
materials
that depict an area titled “enclosed trash& recyclin
g area.” (Sheet A.0.7.) It
ap
pears such area may
be enclosed
b
y a
fence. Likewise, Sheet A.0.7 states that“lot coverage” exclu des fences, im
plyin
g
that the proposed
Project inclu
des fences.

O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary
q
uestioned
w
h
y the City
had identified
SR
M
C Section 14.16.140 as an
ap
plicable stan
dard, statin
g that “there
are no fences proposed as part of theProject.” (October 1, 2025 Letter, p. 32.)O n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 8.) Despite A p
plicant’s
statements in the October 1, 2025 letteran
d in the C
hallen
ged
Con
d
uct Letter
that “no fences have been
proposed,” the
project ap
plication
plainly ap
pears to
propose fences, w
hich
A
p
plicant arg
ued
join the units together an
d thereb
y
make
the project a “multifamily” project.T
h
us, it was proper for the City to
identify this stan
dard as ap
plicable to the
Project. Since none of the ap
plication
materials contain enou
g
h information to
enable the City to determine w
hether the
Project is consistent with this stan
dard, it
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 239 of 344 4908-8412-7925 v4
was proper for the City to determine thatthe Project is inconsistent with thisstan dard.

Sen
din
g
docu
mentation/statin
g inconsistency that improperly relies on local stan
dards w
hen State stan
dards have preempted those local stan
dards
5 T
he city eq
uates all of these together -
housin
g types to sin
gle
family/m
ultifamily to a zonin
g
classification
– sin
gle family to low
density, m
ultifamily to mediu
m/hig
h
density zones. T
he city claims that the
develop
ment m
ust comply
with
mediu
m
density residential
develop
ment/m
ultifamily
develop
ments of a minim
u
m of 3
attached
u
nits. It provides no
ex
planation of how that would
be
permitted in a low
density residential
zone nor how it would
be permitted in
a sin
gle family zone such as the
su
bject lots (such is not permitted
u
n
der city code)
State law
preem
pts this in SB 35
w
hich authorizes m
ultifamily
housin
g
on an
y residential lan
d. SB 35
provides for an
y
qualifyin
g
m
ultifamily
develop
ment of 2 or more
u
nits on an
y residentially zoned lan
d.

See Section I.B of Response toC
hallen
ged
Con
d
uct Letter.

It is u
nclear w
hat the C
hallen
ged
Con
d
uct Letter means b
y “the city
eq
uates all of these together …” or
precisely
how
A
p
plicant alleges the City
has acted im
properly in this regard. In
an
y case, it ap
pears that such arg
u
ment
relies on the assu
m
ption that SB 35
preem
pts the City’s action. As ex
plained
above, the Project does not qualify forprocessin
g
u
n
der SB 35. T
herefore, SB
35 does not preem
pt an
y
City action.
6 Develop
ments m
ust provide two
covered
parkin
g spaces per u
nit
No covered
parkin
g is required
u
n
der
State law
See Section I.B of Response toC
hallen
ged
Con
d
uct Letter.

As ex
plained above, the Project does not
q
ualify for processin
g
u
n
der SB 35.

T
herefore, SB 35 does not preem
pt the
ap
plicable local parkin
g req
uirements.

Sen
din
g
docu
mentation /statin
g inconsistency
b
y
p
urportin
g a stan
dard is not met w
hen the develop
ment contains/inclu
des nothin
g to w
hich that stan
dard ap
plies
7 A
d
ditionally, on streets less than
twenty-six feet, a minimu
m of two
ad
ditional on-site parkin
g spaces m
ust
be provided
T
he street is 26' wide, is clearly such
an
d is clearly
marked as such
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 14.12.030
req
uires that u
nits located on streets less
than twenty-six feet wide m
ust provide
two ad
ditional on-site parkin
g spaces (not
on the driveway apron) compared to w
hat
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 240 of 344 4908-8412-7925 v4
would otherwise be req
uired. T
he City
noted that the ap
plication for the
proposed
Project did
not contain enou
g
h
information to enable the City to analyzeconsistency
with this stan
dard; therefore
the letter stated that the Project was notconsistent with this stan dard. (A
u
g
ust
27, 2025 Inconsistency
Determination, p.

11.)O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised ap
plication
materials
that depict Coleman
Drive, with
measurements in
dicatin
g that the street is
ap
proximately 18 feet wide in front of
two parcels (-47 an
d -46); varies between
17 feet an
d 28 feet in front of one parcel
(-45); provides no information on thewidth of Coleman
Drive in front of two
parcels (-49 an
d -48), an
d
measures the
width of Coleman
Drive diagonally in
front of one parcel such that the actualwidth is not clear (-44). (Sheet A.0.1.)Sheet A.0.2 in dicates that the private
driveway servin
g the proposed
u
nits from
Coleman
Drive (the street) is 26 feet
wide. T
he plans do not in
dicate the exact
location of spaces related to the d
wellin
g
u
nits.

O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 8.) A p
plicant’s
contention that Coleman
Drive is 26 feet
wide is plainly contradicted
b
y the plans
su
b
mitted on September 6, 2025. T
h
us, it
was proper for the City to determine thatthis stan
dard is ap
pliable to the Project.

Moreover, since the plans do not in
dicate
the exact location of the spaces related to
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 241 of 344 4908-8412-7925 v4
the units, it is not possible for the City todetermine whether the additional (2extra space) parking requirements aremet, and it was therefore proper for theCity to determine that the Project isinconsistent with this standard. 8 Where the proposed landscape area is
equal to or greater than 2,500 sq ft
Sheet A.0.5. The landscaping is lessthan 2,500 sq.ft.

See Section I.A of Response toChallenged Conduct Letter.On August 27, 2025, the City issued aninconsistency determination thatidentified that SRMC Section 14.16.370requires water-efficient landscapes inaccordance with Government CodeSection 65595(c). The City noted that theapplication for the proposed Project didnot contain enough information to enablethe City to analyze consistency with thisstandard; therefore the letter stated thatthe Project was not consistent with thisstandard. (August 27, 2025Inconsistency Determination, p. 13.)On September 6, 2025, Applicantsubmitted revised plans. Sheet A.0.6 ofthe plans depict an area titled “naturalstate area” that constitutes 25,362 squarefeet of six parcels on which the Project islocated. Sheet A.0.5 of the plans indicatethat trees will be planted in almost allportions of the “natural state area.” Thus,it appears that the Project involvesapproximately 25,362 feet of landscapedarea. The statement on page A.0.5 that“the landscaping is less than 2,500 squarefeet” directly contradicts what is actuallydepicted on the plans.On October 1, 2025, Applicant’sattorney submitted commentary on theAugust 27, 2025 inconsistencydetermination. Such commentary claimed Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 242 of 344 4908-8412-7925 v4
that lan
dscapin
g
was less than 2,500
sq
uare feet, again contradictin
g
w
hat the
plans actually
depict. (October 1, 2025
Letter, p. 34.)Accordin
gly, on
October 6, 2025, the
City issued an inconsistencydetermination that once again identifiedthis inconsistency. (October 6, 2025Inconsistency Determination, p. 8-9.)
A
p
plicant’s contention that the Project
in
volves less than 2,500 sq
uare feet of
lan
dscaped area is plainly contradicted
b
y
the plans su
b
mitted on September 6,
2025. T
h
us, it was proper for the City to
determine that the water-efficientlan
dscapin
g stan
dard is ap
pliable to the
Project. Moreover, since the plans do notcontain enou
g
h
detail to determine
w
hether the Project com
plies with this
stan
dard, it was proper for the City to
determine that the Project is inconsistentwith this stan dard.
9 Section req
uires driveways servin
g
residential uses with less than 6vehicle parkin
g spaces to be a min. of
10 feet wide
T
he driveway serves 39 parkin
g
spaces. T
he driveway (private street)
is 26', an
d
wider in
parts
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section

14.18.140(a) req
uires driveways servin
g
residential uses with less than 6 vehicleparkin
g spaces to be a minim
u
m of 10
feet wide T
he City
noted that the
ap
plication for the proposed
Project did
not contain enou
g
h information to enable
the City to analyze consistency
with this
stan
dard; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 13.)
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 243 of 344 4908-8412-7925 v4
10 No su
b
division of lan
d into two (2) or
more lots or parcels for the p
urpose of
develop
ment shall be ap
proved
u
nless
it is determined that the followin
g
utilities an
d services can
be provided
No su
b
division of lan
d into two or
more lots is bein
g
proposed.

See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 15.06.020
req
uires a project to be served
b
y
water,
wastewater an
d sewage, gas an
d electric,
an
d com
m
u
nication services. T
he City
noted that the Project did
not ap
pear to be
served
b
y the required
utilities; therefore,
therefore the letter stated that the Projectwas inconsistent with this stan dard.
(A
u
g
ust 27, 2025 Inconsistency
Determination, p. 22.)O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary claimed
that this req
uirement was not
enforceable. (October 1, 2025 Letter, p.58-59.)O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 18.) A p
plicant’s legal
arg
u
ment in the October 1, 2025 letter
was not clearly su
p
ported
b
y law, an
d
ap
plicant had
not revised the Project
plans to in
dicate that the Project would
com
ply
with this stan
dard. Accordin
gly,
the City acted in
good faith in identifyin
g
this as an inconsistency in its October 6,2025 letter.T he C
hallen
ged
Con
d
uct Letter points
out for the first time that this stan
dard
only ap
plies w
hen a project proposes
su
b
division of lan
d into two or more
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 244 of 344 4908-8412-7925 v4
parcels. Havin
g considered this
ad
ditional in
p
ut, the City
has determined
that this stan
dard
does not ap
ply to the
Project.Were the Project’s ap
plication still
pen
din
g, the City
would
not seek to ap
ply
this stan
dard. Since the Project
ap
plication
was properly
denied on other
groun
ds (i.e., because the Project does
not q
ualify for SB 35), this com
ment is
moot.
11 Table 1.4 O
bjective Desig
n Stan
dards
adopted
March 2024.

First sentence of the stan
dards. "T
hese
stan
dards ap
ply to all "residential
m
ultifamily" "residential sin
glefamily"..develop
ment.., all of w
hich
are terms defined in SR
M
C section

14.03.030":14.03.030: ""Residential, m
ultifamily
means mediu
m an
d
hig
h
density
residential develop
ment,…. containin
g
three (3) or more attached
d
wellin
g
u
nits.." – a zonin
g
desig
nation for lan
d
zoned
mediu
m an
d
hig
h
density
per
the zonin
g ordinance an
d
General
Plan.Residential sin
gle family
means low
density residential develop
ment
containin
g one (1) primary residential
d
wellin
g
u
nit for use b
y a sin
gle
household on a sin
gle parcel
T
he develop
ment is clearly
not in
either of those categories. F
urther, the
develop
ment vested
prior to these
stan
dards bein
g created
T
he su
bject
lots are not in this zonin
g. T
his is not
ap
plicable to the develop
ment
T
he O
bjective Desig
n Stan
dards ap
ply to
all residential develop
ment projects in the
City. T
he Project is a residential
develop
ment project. T
herefore, the
O
bjective Desig
n Stan
dards ap
ply to the
Project.Accordin
gly, it was proper for the City to
identify the O
bjective Desig
n Stan
dards
as ap
plicable to the Project an
d for the
City to identify inconsistencies betweenthe Project an
d the O
bjective Desig
n
Stan
dards.

See also response to Item 22 below.T
he O
bjective Desig
n Stan
dards ap
ply to
all “residential m
ultifamily,” “residential
sin
gle-family,” “residential duplex,” an
d
residential develop
ment as part of a
“mixed-use project,” all of w
hich are
terms defined in SR
M
C Section

14.03.030. (O
D
DS, p. 1.)
"Residential, m
ultifamily" means
mediu
m an
d
hig
h
density residential
develop
ment, inclu
din
g a "transitional
housin
g
develop
ment" or "su
p
portive
housin
g" as defined
u
n
der State Health
an
d Safety
Code Section 50675.2 (an
d
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 245 of 344 4908-8412-7925 v4
su
bseq
uent amen
d
ments), containin
g
three (3) or more attached
d
wellin
g
u
nits
in one (1) or more structures located on asin
gle parcel or com
mon lot. (SR
M
C
Section 14.03.030.)"Residential, sin
gle-family" means low
density residential develop
ment
containin
g one (1) primary residential
"d
wellin
g
u
nit" for use b
y a sin
gle
household on a sin
gle parcel. T
his
definition inclu
des use of a sin
gle-family
d
wellin
g an
d/or accessory
d
wellin
g
u
nit
as a household for "transitional housin
g"
or "su
p
portive housin
g" as defined
u
n
der
the California Health an
d Safety
Code.
(SR
M
C Section 14.03.030.)
T
he San
Rafael M
u
nicipal Code does not
define the terms “mediu
m
density
residential,” “hig
h
density residential,” or
“low
density residential.” T
he City
interprets those terms to mean the densityran
ges permitted in
R (low
density), M
R
(mediu
m
density), an
d
H
R (hig
h
density)
residential districts. T
he City
does not
interpret those terms to req
uire that
b
uildin
gs be located in an
y
particular
zonin
g
district. In other words, lowdensity
means between 0 d
u/ac an
d 8.7
d
u/ac; mediu
m-density
means between

8.7 du/ac an
d 21.78 du/ac; an
d
hig
hdensity
means u
p to 43.56 d
u/ac. (See
SR
M
C Section 14.02.030(B).)
T
he Project su
b
mitted on Septem
ber 6,
2025, after the O
bjective Desig
n
Stan
dards were adopted, proposes 14
u
nits on 1.427 acres at a density of

9.8d
u/ac. Accordin
gly, the Project is
“mediu
m-density.”
Sen
din
g
docu
mentation/statin
g inconsistency
b
y allegin
g that plan
nin
g
data is not in the develop
ment sub
mittal w
hen it is
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 246 of 344 4908-8412-7925 v4
12 Plans do not show screenin
g of
parkin
g from the street
T
he plans clearly show screenin
g of
parkin
g from the street.

See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that General Plan
Policy
C
D
P4.9, w
hich requires parkin
g to be
screened from the street b
y lan
dscapin
g,
ap
plies to the Project. T
he City
noted
that the ap
plication for the proposed
Project did
not show screenin
g of
parkin
g; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 5.)
O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised ap
plication
materials.

Page A.0.3 depicts the area called“Parkin
g 1” screened from
Coleman
Drive b
y a green area that is labeled
“C
herry
Laurel Parkin
g Screenin
g.” T
he
areas labeled “Parkin
g 2,” “Parkin
g 3,”
“Parkin
g 4,” an
d “Parkin
g 5” do not
ap
pear to be screened from
Coleman
Drive. Given the steep slope of the hill, itis not clear from the plans w hether such
parkin
g areas will be visible from
Coleman
Drive or not; the required
lan
dscaped screenin
g is missin
g.

O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary claimed
that this req
uirement was not objective.
(October 1, 2025 Letter, p. 12.)To the extent that General Plan Policy
C
D
P-4.9 req
uires that a project inclu
de a
lan
dscaped screenin
g
between
parkin
g
an
d the street, the in
q
uiry is a yes-or-no
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 247 of 344 4908-8412-7925 v4
q
uestion: “do the plans depict lan
dscaped
screenin
g?” T
hus, in this regard, this
stan
dard is objective an
d enforceable.

O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 4.) Because the planssu b
mitted on September 6, 2026 do not
depict lan
dscaped screenin
g for Parkin
g
areas 2-5, it was proper for the City todetermine that the Project is inconsistentwith this stan dard.
13 Insufficient information
has been
provided in
plans to verify the
proposed
heig
ht
Heig
hts are clearly show
n on
A2.2 to
A3.4 - 15 sheets com
prehensively
showin
g the heig
ht as defined
b
y
m
u
nicipal code for every
b
uildin
g.

See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified the maxim
u
m
heig
ht
req
uirement contained in SR
M
C Section

14.04.030. T
he City ex
plained that in
hillside zonin
g
districts, heig
ht is
measured
vertically from the existin
g
grade to the u
p
permost point on the roof
ed
ge, wall parapet, mansard or other
feature above the existin
g
grade at an
y
point. T
he City
noted that the ap
plication
for the proposed
Project did
not provide
sufficient information to enable the Cityto determine the heig ht of the proposed
b
uildin
gs; therefore the letter stated that
the Project was not consistent with thisstan
dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 7.)
O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised ap
plication
materials.

Pages A2.2 throu
g
h
A3.4 – 15 depict
elevations that inclu
de w
hat ap
pear to be
heig
ht measurements, b
ut such
measurements do not ap
pear to use the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 248 of 344 4908-8412-7925 v4
method of measurement required
b
y
SR
M
C Section 14.04.030. For exam
ple,
on sheet A.2.2, a measurement labeled39’-10” ap
pears to measure the distance
from existin
g
grade to the top of gray,
blue, an
d
beige portions of the b
uildin
g,
b
ut does not inclu
de w
hat ap
pears to be
an ad
ditional feature that would likely
be
inclu
ded in the heig
ht measurement. It is
therefore not possible to determine fromSheet A.2.2 the heig ht of the depicted
b
uildin
g. May
be it’s 39’10”; may
be it’s
taller. As another exam
ple, on sheet
A.2.3, a measurement labeled 48’-5”ap
pears to measure the distance from a
n
u
m
ber of feet below ap
proximately the
center point of the b
uildin
g to the top of
the gray, blue, an
d
beige portions of the
b
uildin
g, b
ut does not inclu
de w
hat
ap
pears to be an ad
ditional feature that
would likely
be inclu
ded in the heig
ht
measurement. It is therefore not possibleto determine from Sheet A.2.3 the heig ht
of the depicted
b
uildin
g. Maybe it’s
35’0”; may
be it’s 48’5”; may
be it’s
taller. T
hese same ty
pes of issues are
present on each of Pages A2.2 throu
g
h
A3.4 – 15.O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 4.) Because the planssu b
mitted on September 6, 2026 do not
contain enou
g
h information to allow the
City to determine w
hether the Project is
consistent with the ap
plicable heig
ht
stan
dards, it was proper for the City to
determine that the Project is inconsistentwith this stan dard.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 249 of 344 4908-8412-7925 v4
14 New streets an
d
driveway
grades shall
not exceed 18 per cent. T
he projects
plans do not ap
pear to in
dicate the
proposed slope
A.0.2 site plan
very clearly shows the
gradient of the street at 8%, as doA.0.3, A.0.8.

See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 14.12.030
req
uires a that new streets an
d
driveway
grades not exceed 18 percent. (A
u
g
ust
27, 2025 Inconsistency
Determination, p.

12.) T
he City
noted that the ap
plication
for the proposed
Project did
not provide
sufficient information to enable the Cityto determine w hether the Project
com
plied
with this stan
dard; therefore the
letter stated that the Project was notconsistent with this stan dard.

O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary claimed
that this req
uirement was not objective
because an exception could
be granted.
(October 1, 2025 Letter, p. 31.) Sucharg
u
ment misinterprets the meanin
g of an
“objective” stan
dard; in an
y case, the
C
hallen
ged
Con
d
uct Letter does not
repeat such claim. T
he October 1, 2025
letter did
not point to an
y
portion of the
develop
ment ap
plication that contained
the req
uired information.

O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 18.) T he City acted in
good faith in identifyin
g this as an
inconsistency in its October 6, 2025letter.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 250 of 344 4908-8412-7925 v4
T
he C
hallen
ged
Con
d
uct Letter points for
the first time to pages A.0.2, A.0.3, an
d
A.0.8 of the plans su
b
mitted on
Septem
ber 6, 2025. Havin
g considered
this ad
ditional in
p
ut, the City
notes that
each of sheets A.0.2, A.0.3, an
d
A.0.8,
w
hich are densely
packed
with
information, contain a notation in smallfont that the private driveway will have
an 8%
gradient, an
d
no lon
ger considers
this item to be an inconsistency.
15 T
he cover page notes that all spaces
are 9 b
y 19 feet, the ap
plication
does
not contain information to determinew
here all parkin
g spaces (sic)
Parkin
g is show
n on the parkin
g sheet
A.0.3 an
d is clearly show
n as 19' x 9'
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 14.18.100
req
uires specified
dimensions (19’ x 9’)
for parkin
g spaces. T
he City
noted that
w
hile the ap
plication for the proposed
Project provided
dimensional information
for some parkin
g spaces, it did
not
contain enou
g
h information to enable the
City to analyze consistency of eachparkin
g space with this stan
dard;
therefore the letter stated that the Projectwas not consistent with this stan dard.
(A
u
g
ust 27, 2025 Inconsistency
Determination, p. 13.)O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised
plans. Sheet A.0.3 of
the plans label parkin
g spaces 14 an
d 30
with the notations 19’ an
d 9’. Parkin
g
space 33 ap
pears nonexistent. Parkin
g
space 34 ap
pears to be labeled as only
8’7” wide. No other parkin
g spaces are
labelled
with
dimensions. T
herefore, it is
im
possible to determine w
hether an
y
spaces other than 14 an
d 30 meet the 19’
x 9’ dimensional req
uirements.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 251 of 344 4908-8412-7925 v4
O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary claimed
that “all parkin
g is clearly 9’ x 19’ an
d in
com
pliance with this provision.”
(October 1, 2025 Letter, p. 35.) T
he
C
hallen
ged
Con
d
uct Letter claims that
Sheet A.0.3 proves such statement.Accordin
gly, on
October 6, 2025, the
City issued an inconsistencydetermination that once again identifiedthis inconsistency. (October 6, 2025Inconsistency Determination, p. 9.)
Contrary to A
p
plicant’s assertion that the
plans provide the req
uired information,
the only spaces that are “clearly” 9’ x 19’are spaces 14 an d 30. Space 34 ap
pears to
be smaller, an
d
without dimensional
information about other spaces, it ap
pears
possible that other spaces are, too. T
h
us,
it was proper for the City to determinethat the plans do not contain enou g
h
detail to determine w
hether the Project
com
plies with this stan
dard, an
d for the
City to therefore determine that theProject is inconsistent with this stan dard.
16 Lig
htin
g for parkin
g areas m
ust be
mou
nted at maxim
u
m of 15 feet
A.0.3 Parkin
g
& circulation
plan. T
he
plans state "Parkin
g lig
htin
g is
mou
nted at 14' from floor"
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that Section IV.A9 of theHillside Desig
n
G
uidelines req
uire that
an
y overhead lig
htin
g for residential
parkin
g areas be mou
nted at a maxim
u
m
of 15 feet. T
he City
noted that the
ap
plication for the proposed
Project did
not contain enou
g
h information to enable
the City to analyze with this stan
dard;
therefore the letter stated that the Project
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 252 of 344 4908-8412-7925 v4
was not consistent with this stan
dard.
(A
u
g
ust 27, 2025 Inconsistency
Determination, p. 15.)O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised
plans. Sheet A.0.3 of
the plans contain three relevant notations:a notation
near Parkin
g 1 that says
"Parkin
g lig
htin
g at 3' from floor"; a
notation
near Parkin
g 3 that says
“Parkin
g lig
htin
g at 14’ from floor”; an
d
a notation
near Parkin
g 4 that a says
“Parkin
g at 14’ from floor.” T
he plans do
not contain an
y information about the
heig
ht of lig
htin
g at Parkin
g 2 or Parkin
g

5.O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary ap
pears
to claim that “mou
nted at a maxim
u
m of
15 feet” is not an objective stan
dard.
(October 1, 2025 Letter, p. 41.) “15 feet”is u
niformly
verifiable b
y reference to an
external criterion (e.g., a tape measure),an
d is a q
uintessential exam
ple of
objectivity.O
n
October 6, 2025, the City issued an
inconsistency
determination that once
again identified this inconsistency.(October 6, 2025 InconsistencyDetermination, p. 10.) Contrary toA p
plicant’s assertion that the plans
provide the req
uired information, the
plans only contain information aboutlig
htin
g
mou
ntin
g
heig
ht for Parkin
g 1, 3,
an
d 4; the information is missin
g for
Parkin
g 2 an
d 5. T
hus, it was proper for
the City to determine that the plans donot contain enou g
h
detail to determine
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 253 of 344 4908-8412-7925 v4
w
hether the Project com
plies with this
stan
dard, an
d for the City to therefore
determine that the Project is inconsistentwith this stan dard.

Sen
din
g
docu
mentation that misrepresents city
m
u
nicipal code
17 Side yard setback to be 10 feet an
d
front yard setback to be 20 feet.

In fact m
u
nicipal code defines the yard
req
uirement as the average on the
block. (14.04.030)
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 14.04.030
req
uires a minimu
m side yard setback of
10 feet an
d a minim
u
m front yard setback
of 20 feet in the R10 zone. T
he City
noted that all lots propose develop
ment
with side yard setbacks of ap
proximately
4 feet an
d all lots propose develop
ment
with front yard setbacks of ap
proximately

2.5 to 9 feet 11 inches. T
herefore, the
letter stated that the Project was notconsistent with this stan dard. (A
u
g
ust
27, 2025 Inconsistency
Determination, p.

7.)O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised
plans that did
not
revise the proposed setbacks.O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary states
that footnote to the table in SR
M
C
Section 14.04.030 creates an exception tothese setback stan dards, an
d instead sets
the req
uired front an
d side setbacks as the
average side an
d front setbacks of
im
proved lots within the same district on
both sides of the street for the len
gth of
the block. (October 1, 2025 Letter, p. 15.)A
p
plicant’s readin
g of Footnote D (an
d
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 254 of 344 4908-8412-7925 v4
Footnote A) assu
mes that the req
uired
setback is the lesser of 10 (side) / 20(front) feet an
d the average setback on
the block. However, the City interpretsthe code to req
uire a setback of the
greater of 10 (side) / 20 (front) feet an
d
the average setback on the block.Accordin
gly, on
October 6, 2025, the
City issued an inconsistencydetermination that once again identifiedthis inconsistency. (October 6, 2025Inconsistency Determination, p. 5.)
Because the plans demonstrate that theProject does not com ply
with the
req
uired setback, it was proper for the
City to determine that the Project isinconsistent with this stan dard.
18 Hillside Desig
n
G
uidelines state
Fences an
d
walls over 3 feet in
heig
ht
that face p
ublic streets SH
O
U
L
D (not
shall) Definitions in
Hillside
g
uidelines – SH
O
U
L
D (not shall) an
d
w
here SH
O
U
L
D is used it states are
not man
datory. City rewrites this code
in its consistency analysis statin
g the
word is "req
uires" City
misstates its
ow
n code
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that Section IV.A7 of theHillside Desig
n
G
uidelines req
uire that
fences an
d
walls over 3 feet in
heig
ht
facin
g a p
u
blic street provide a fully
lan
dscaped
b
uffer at least 5 feet deep.

T
he City
noted the ap
plication
provided
no information about proposed fences orwalls; therefore, the letter stated that theProject was not consistent with thisstan dard. (Au
g
ust 27, 2025
Inconsistency
Determination, p. 15.)
O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised
plans that did
not
provide ad
ditional information about
fences or walls.O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 255 of 344 4908-8412-7925 v4
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary arg
ues
that the req
uirement is not objective
because it is contained in a section of theHillside Desig n
G
uidelines titled
“Architectural C
haracter,” an
d that the
word “character” is su
bjective. Such
arg
u
ment ig
nores the fact that “3 feet”
an
d “5 feet” are quintessentially objective
terms. Likewise, to the extent thisstan
dard requires lan
dscapin
g, the in
q
uiry
is an objective yes-or-no q
uestion: “do
the plans inclu
de lan
dscapin
g?”
Accordin
gly, on
October 6, 2025, the
City issued an inconsistencydetermination that once again identifiedthis inconsistency. (October 6, 2025Inconsistency Determination, p. 39-40.)
Because the plans still do not providead
ditional information about fences or
walls, it was proper for the City todetermine that the Project is inconsistentwith this stan dard.

T
he C
hallen
ged
Con
d
uct Letter claims
for the first time that this stan
dard is not
ap
plicable because the Hillside Desig
n
G
uidelines state, “Fences an
d
walls over
3 feet in
heig
ht that face p
ublic streets
should
provide a fully lan
dscaped
b
uffer
at least 5 feet deep on the street facin
g
side of the fence or wall” (HillsideG
uidelines Section IV.A7.5.) A
p
plicant
claims that the word “should” is notman
datory. A
p
plicant ap
pears to
incorrectly conflate the meanin
g of the
word “man
datory” with the meanin
g of
the word “objective.” T
he g
uidelines
specify that the word “shall” is used toex
press w
hat is man
datory, w
hile the
word “should” is used to ex
press “w
hat is
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 256 of 344 4908-8412-7925 v4
acceptable to satisfy” the requiredstan
dard. In other words, w
hen the
g
uidelines state that a project “shall” do
somethin
g, there is no other option.

W
hen the g
uidelines state that a project
“should” do somethin
g, the specified
stan
dard is a baseline that, if provided,
would satisfy the requirement; however,the City could exercise discretion toallow for a deviation from this baseline.Nevertheless, the baseline is stillmandatory if no discretionary deviation
is permitted. If the baseline stan
dard is
objective, state law
permits the City to
enforce it. Here, the specified
baseline is
a 5-foot deep lan
dscaped
b
uffer between
an
y fence or wall over 3 feet in
heig
ht
an
d an
y
p
ublic street. As ex
plained
above, this baseline stan
dard is objective.

Accordin
gly, was proper for the City to
ap
ply an
d identify an inconsistency
with
this stan
dard.
19 Res 14890: T
he affordable housin
g
u
nits shall possess a distrib
ution of
bedroom cou
nts proportionate to that
of the market-rate u
nits within the
residential develop
ment project "T
he
affordable housin
g
units shall have
access to the same amenities an
d
com
mon spaces as the market rate
u
nits"
T
his code does not exist T
he code in
fact states "Com
patibility
with
the…amenities…of the otherdeveloped
u
nits". T
he city rewrote this
code specifically for the consistencynotice on the fly to make it objective.Com patible is non-objective. B
ut the
code sim
ply
doesn't exist T
here are
man
y exam
ples of the city
makin
g
up
the code for the consistency letter ofOctober 2025. Yes – just in ventin
g
m
u
nicipal code, to delay this
com
pliant ap
plication.

See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

O
n
A
u
g
ust 27, 2025, the City issued an
inconsistency
determination that
identified that SR
M
C Section 14.16.030
an
d
City
Cou
ncil Resolution 14890
req
uire, amon
g other requirements, the
followin
g:
(1) “T
y
pe. T
he affordable housin
g
u
nits shall possess a distrib
ution
of bedroom counts proportionateto that of the market-rate u nits
within the residentialdevelop
ment project. (Section
C(1) of Resolution 14890)”(A
u
g
ust 27, 2025 Inconsistency
Determination, p. 19.)
(2) “Access. T
he affordable housin
g
u
nits shall have access to the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 257 of 344 4908-8412-7925 v4
same amenities an
d com
mon
spaces as the market rate u
nits.
(Section
C(2) of Resolution
14890)” (A
u
g
ust 27, 2025
Inconsistency
Determination, p.

19.)
T
he City
noted the ap
plication
provided
no information to show com
pliance with
these stan
dards; therefore, the letter
stated that the Project was not consistentwith these stan dards. (A
u
g
ust 27, 2025
Inconsistency
Determination, p. 15.)
O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary claims
that the stan
dards stated above “sim
ply
[do not] exist.” (October 6, 2025Inconsistency
Determination, p. 51.)
T
he exact lan
g
uage of Resolution 14890
is:“C. Location an
d
T
y
pe of Affordable
Housin
g
U
nits. Affordable housin
g
u
nits
shall be dispersed throu
g
hout the
residential develop
ment project. U
nits
may
be clustered
within the residential
project w
hen the city
determines that
such clusterin
g furthers affordable
housin
g op
portu
nities. T
he affordable
housin
g
u
nits shall be of a similar mix
an
d ty
pe to that of the residential
develop
ment project as a w
hole,
inclu
din
g, b
ut not limited to:

1. T
he same or su
bstantially similar mix
of u
nit size (e.g., nu
m
ber of bedrooms,
sq
uare footage);

2. Com
patibility
with the desig
n,
materials, amenities, an
d ap
pearance of
the other developed
u
nits.”
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 258 of 344 4908-8412-7925 v4
T
his lan
g
uage imposes several distinct
develop
ment stan
dards, inclu
din
g the
T
y
pe an
d
Access req
uirements identified
above.T
he T
y
pe req
uirement identified as (1)
above comes from the followin
g
lan
g
uage in
bold:
“C. Location an
d
T
y
pe of Affordable
Housin
g
U
nits. Affordable housin
g
u
nits
shall be dispersed throu
g
hout the
residential develop
ment project. U
nits
may
be clustered
within the residential
project w
hen the city
determines that
such clusterin
g furthers affordable
housin
g op
portu
nities. T
he affordable
housing u
nits shall be of a similar mix
an
d ty
pe to that of the residential
develop
ment project as a w
hole,
inclu
ding, b
ut not limited to:

1. T
he same or substantially similar mix
of u
nit size (e.g., n
u
m
ber of bedrooms,
sq
uare footage);

2. Com
patibility
with the desig
n,
materials, amenities, an
d ap
pearance of
the other developed
u
nits.”
T
he Access req
uirement identified as (2)
above comes from the followin
g
lan
g
uage in
bold:
“C. Location an
d
T
y
pe of Affordable
Housin
g
U
nits. Affordable housin
g
u
nits
shall be dispersed throu
g
hout the
residential develop
ment project. U
nits
may
be clustered
within the residential
project w
hen the city
determines that
such clusterin
g furthers affordable
housin
g op
portu
nities. T
he affordable
housing u
nits shall be of a similar mix
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 259 of 344 4908-8412-7925 v4
an
d ty
pe to that of the residential
develop
ment project as a w
hole,
inclu
din
g, b
ut not limited to:

1. T
he same or substantially similar mix
of u
nit size (e.g., nu
m
ber of bedrooms,
sq
uare footage);

2. Com
patibility
with the desig
n,
materials, amenities, an
d ap
pearance
of the other developed
u
nits.”
O
bjective stan
dards are enforceable;
su
bjective stan
dards are not. T
he word
“the same” is objective, even if “similar”is not. As a baseline req uirement,
affordable housin
g
units m
ust be
provided in the same mix of unit size, interms of n
u
m
ber of bedrooms, as the
market-rate units in the develop
ment.

T
he “similar” p
hrase is an exception to
the baseline rule. T
he City can enforce
the “same”ness req
uirement because it is
objective.O
n Septem
ber 6, 2025, Ap
plicant
su
b
mitted revised
plans with ad
ditional
information about the bedroom cou
nts of
the 13 market-rate u
nits com
pared to the
sin
gle affordable unit. T
he average
bedroom cou
nt for market rate u
nits is

3.85 bedrooms per u
nit, w
hile the
affordable u
nit contains only 2 bedrooms.

Likewise, the ap
plication
does not
in
dicate w
hether the affordable u
nit will
have access to the same amenities (e.g.the pool) an
d com
mon spaces that the
market rate units will have access to.Accordin
gly, on
October 6, 2025, the
City issued an inconsistencydetermination that once again identifiedthese inconsistencies. (October 6, 2025Inconsistency Determination, p. 14-15.)
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 260 of 344 4908-8412-7925 v4
Because the plans do not demonstratethat the Project com plies with the T
y
pe
an
d
Access req
uirements of Resolution
14890, it was proper for the City todetermine that the Project is inconsistentwith these stan dards.

As to the C
hallen
ged
Con
duct Letter’s
claim that “[t]here are man
y exam
ples of
the [C]ity
makin
g
u
p the code for the
consistency letter of October 2025,”A
p
plicant cites no examples to su
p
port
this claim other than the T
ype an
d
Access
req
uirements specified above. Such claim
is baseless an
d
warrants no further
response.

Askin
g for docu
ments that have alread
y
been
provided
20 Geotech
nical report is req
uired
Geotech
nical report has been
provided See Section I.A of Response to
C
hallen
ged
Con
d
uct Letter.

O
n
October 6, 2025, the City issued an
inconsistency
determination that inclu
ded
a section labeled “Courtesy
Com
ments,”
w
hich specified that “the followin
g
com
ments do not ad
dress consistency
with ap
plicable stan
dards [. . .] the City is
providin
g these ad
ditional com
ments to
you as a courtesy.” (October 6, 2025Inconsistency
Determination, p. 20.)
Courtesy
Com
ment #2 noted that a
geotech
nical report would
be req
uired.

T
he City
has never claimed that the
Project’s ap
plication could
not be
deemed com
plete or consistent with
ap
plicable stan
dards, or that the
ap
plication could
not be ap
proved,
without the su
b
mission of a geotech
nical
report. T
he p
urpose of the City’s
com
ment, as in
dicated in the October 6,
2025 letter, was as a courtesy only. T
he
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 261 of 344 4908-8412-7925 v4
City
has not caused an
y
delay or
increased cost b
y
providin
g this courtesy
com
ment.

Deman
din
g
docu
ments that are C
E
Q
A reports
21 A
Transportation
A
nalysis report is
req
uired
per city
G
uidelines. Page 1
of these G
uidelines describe the report
as prod
ucin
g an outcome "that
inclu
de[s] con
ditions of ap
proval
an
d/or mitigation
measures u
n
der
C
E
Q
A"
Req
uirin
g this report is prohibited
u
n
der SB 35.

See Sections I.A an
d I.B of Response to
C
hallen
ged
Con
d
uct Letter.

O
n
October 6, 2025, the City issued an
inconsistency
determination that inclu
ded
a section labeled “Courtesy
Com
ments,”
w
hich specified that “the followin
g
com
ments do not ad
dress consistency
with ap
plicable stan
dards [. . .] the City is
providin
g these ad
ditional com
ments to
you as a courtesy.” (October 6, 2025Inconsistency
Determination, p. 20.)
Courtesy
Com
ment #3 noted that a
transportation analysis would
be
req
uired.

T
he City
has never claimed that the
Project’s ap
plication could
not be
deemed com
plete or consistent with
ap
plicable stan
dards, or that the
ap
plication could
not be ap
proved,
without the su
b
mission of a
transportation analysis. T
he p
urpose of
the City’s com
ment, as in
dicated in the
October 6, 2025 letter, was as a courtesyonly. T
he City
has not caused an
y
delay
or increased cost b
y
providin
g this
courtesy com
ment.

Notwithstan
din
g the above, the
C
hallen
ged
Con
d
uct Letter also claims
that a transportation analysis can
not be
req
uired for an SB 35 project. As
ex
plained above, the Project does not
q
ualify for processin
g
u
n
der SB 35.

T
herefore, SB 35 would
not prohibit the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 262 of 344 4908-8412-7925 v4
City from requirin
g a transportation
analysis in con
nection
with the Project.

Claimin
g
–
both
directly an
d in
directly
– that the housin
g
develop
ment project did
not vest on
May 15, 2023. Makin
g
written statements that adopt, repeat, flow
from, or attem
pt to give effect to the City's erroneous position that the housin g
develop
ment project did
not vest on
May 15, 2023
22 Definitive codification of specifically
SB 35 vestin
g: Govt Code 65913.4(d)
(1) review "strictly focused onassessin
g com
pliance with criteria
req
uired for streamlined
projects, as
well as an
y reasonable objective
desig
n stan
dards p
u
blished an
d
adopted
b
y ordinance or resolution
b
y
a local jurisdiction
before su
b
mission
of a develop
ment ap
plication, an
d
shall be broadly ap
plicable to
develop
ment within the jurisdiction"
O
n
May 15, 2023, A
p
plicant su
b
mitted a
preliminary ap
plication for a housin
g
develop
ment project located on the
Project Site. T
he preliminary ap
plication
p
urported to be both an SB 330
preliminary ap
plication (i.e., for a
housin
g
develop
ment project u
n
der an
y
potential ap
proval path) an
d an SB 35
notice of intent (i.e., particular to ahousin
g
develop
ment project proceedin
g
u
n
der SB 35).

For non-SB 35 projects, an ap
plicant for
a housin
g
develop
ment project m
ust
su
b
mit a housin
g
develop
ment
ap
plication for the project in
question
within 180 days of the su
b
mission of a
preliminary ap
plication in order for the
preliminary ap
plication to have the effect
of vestin
g
develop
ment stan
dards as of
the date of the su
b
mission of the
preliminary ap
plication. (Gov. Code §
65941.1(e)(1).)For SB 35 projects, the stan
dard 180-day
deadline does not ap
ply; rather, an SB 35
ap
plication is su
bject only to the
objective zonin
g stan
dards, objective
su
b
division stan
dards, an
d objective
desig
n review stan
dards in effect at the
time that an SB 35 notice of intent issu
b
mitted, regardless of the len
gth of
time between su
b
mission of the notice of
intent an
d su
b
mission of the SB 35
develop
ment ap
plication. (Gov. Code §
65913.4(a)(5).)
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 263 of 344 4908-8412-7925 v4
W
hen a housin
g
develop
ment ap
plication
does not qualify for a particular ap
proval
path
way (e.g., SB 35), ap
plicants often
req
uest that cities instead
process the
ap
plication
un
der a different ap
proval
path
way (e.g., SB 330.)
T
he A
u
g
ust 27, 2025 inconsistency
determination
notes that the Project does
not comply
with SB 35 an
d
notes that no
develop
ment ap
plication
was su
b
mitted
within 180 days of the su
b
mission of the
preliminary ap
plication. (A
u
g
ust 27,
2025 inconsistency
determination, p. 1.)
T
h
us, footnote 1 on the first page of the
A
u
g
ust 27, 2025 inconsistency
determination conclu
ded that the Project
did
not vest the stan
dards in
place on
May 15, 2023. T
he intent of footnote 1
was to in
dicate, given that the Project did
not q
ualify for processin
g
u
n
der SB 35,
that if the Project were processed as astan
dard SB 330 ap
plication, the Project
would
not have vested the stan
dards in
place on
May 15, 2023. Accordin
gly, as
a courtesy to A
p
plicant, the City
identified inconsistencies between theProject an
d the O
bjective Desig
n
Stan
dards adopted in
March 2024, in case
A
p
plicant elected to proceed
un
der SB
330.O
n
October 1, 2025, A
p
plicant’s
attorney su
b
mitted com
mentary on the
A
u
g
ust 27, 2025 inconsistency
determination. Such com
mentary
correctly
noted that “the City
ack
nowled
ges that,” if eligible for
processin
g
u
n
der SB 35, the Project
would
be “subject to only ap
plicable
rules as of May 15, 2023.” (October 1,2025 letter, p. 42.) T he City agreed, an
d
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 264 of 344 4908-8412-7925 v4
contin
ues to agree, that a project that
q
ualifies for ministerial processin
g an
d
ap
proval u
n
der SB 35 may
be su
bject
only to the ap
plicable reg
ulations in
effect on the date that the notice of intentwas su
b
mitted. (Gov. Code §
65913.4(a)(5).) However, as ex
plained in
the A
u
g
ust 27, 2025 inconsistency
determination, the Project would
not vest
stan
dards as of May 15, 2023 if
processed outside the context of SB 35.T
he October 6, 2025 inconsistency
determination once again identified thatthe Project did not q
ualify for processin
g
u
n
der SB 35. (October 6, 2025
inconsistency
determination, p. 3.)
Accordin
gly, the Project did
not vest the
develop
ment stan
dards in effect on
May
15, 2023. As a courtesy, the City onceagain identified inconsistencies betweenthe Project an d the O
bjective Desig
n
Stan
dards adopted in
March 2024, in case
A
p
plicant elected to proceed
un
der SB
330.

Ig
norin
g
Govt Code 65905.5 (c)(1)
23 City raises m
ultiple items (see above)
that are su
bject to the ap
plyin
g of
density
bonus an
d
waivers an
d th
us its
(c)(1) letter in those regards is in
valid
an
d
not issued consistent with State
law.
"T
he receipt of a density
bonus
inclu
din
g an
y incentives, concessions,
or waivers p
ursuant to Section 65915
shall not constitute a valid
basis on
w
hich to fin
d that a proposed
housin
g
develop
ment project is inconsistent,
not in com
pliance, or not in
conformity, with an ap
plicable plan,
program, policy, ordinance, stan
dard,
req
uirement, or other similar
provision. T
he ap
plicant had ap
plied
for a waiver of this stan
dard, b
ut the
city is u
nreasonably an
d
with
no valid
reason
delayin
g the issuance of the
See Item 24 below.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 265 of 344 4908-8412-7925 v4
waiver T
he develop
ment is entitled to
a bon
us &
waivers u
n
der State law.

Issuin
g inconsistency letters un
der 65913.4 (c) (A) & (C) without first ap
provin
g
density
bon
us an
d
waivers & incorporatin
g their effect into 65913.4 (c)
com
m
u
nications; Sen
din
g
docu
mentation allegin
g inconsistency of items that are resolved
b
y issuance of a bon
us &
waivers, w
hich
bon
us &
waivers are bein
g
im
properly
delayed
b
y the city
24 E
xam
ple T
he General Plan limits
heig
ht on the site to 30 feet tall. All
primary
d
wellin
gs exceed 30 feet in
heig
ht.

See Section I.C of the Response toC
hallen
ged
Con
d
uct Letter.

Statin
g "the ap
plicant has not su
b
mitted sufficient information to enable the City to analyze this stan dard; therefore the Project is not consistent with this stan dard"
because the ap
plicant has su
b
mitted
plans that provide su
bstantial evidence
25 Repeated contin
ually throu
g
hout the
p
urported 'inconsistency' letter
T
his is N
O
T the stan
dard
b
y
w
hich SB
35 develop
ments are reviewed
b
y a
local govern
ment: Govt Code 65913.4
(f) (1). "..shall not require stu
dies nor
information that do not pertain
directly
to determinin
g
w
hether the
develop
ment is consistent with
objective plan
nin
g stan
dards" Govt
Code 65913.4 (c)(3) "For p
urposes of
this section, a develop
ment is
consistent with the objective plan
nin
g
stan
dards specified in su
b
division (a)
if there is su
bstantial evidence that
would allow a reasonable person toconclu
de that the develop
ment is
consistent with the objective plan
nin
g
stan
dards. T
he local govern
ment shall
not determine that a develop
ment… is
in conflict with the objective plan
nin
g
stan
dards on the basis that ap
plication
materials are not inclu
ded, if the
ap
plication contains su
bstantial
evidence that would allow areasonable person to conclu
de that the
develop
ment is consistent with the
objective plan
nin
g stan
dards" T
he
develop
ment su
b
mitted contained
su
bstantial evidence that would allow
See Section I.A of Response toC
hallen
ged
Con
d
uct Letter.

T
he C
hallen
ged
Con
d
uct Letter claims,
in a blan
ket statement, that the Project
ap
plication contains su
bstantial evidence
to allow a reasonable person to conclu
de
that the ap
plication is consistent with
ap
plicable objective stan
dards. However,
the challen
ged con
d
uct letter does not
cite an
y
portion of the ap
plication that
would allow a reasonable person to makesuch fin
din
g.

As ex
plained in the City’s responses to
Items 2, 4, 7, 8, 12, 13, 15, 16, 18, an
d 19
above, the ap
plication lacks enou
g
h
information to allow a reasonable personto conclu
de that the Project is consistent
with the ap
plicable objective plan
nin
g
stan
dards identified in the A
u
g
ust 27,
2025 an
d
October 6, 2025 inconsistency
determinations. T
he City
has carefully
reviewed all the materials that A
p
plicant
has su
b
mitted, identified
w
here more
information is needed to determineconsistency, an
d in
vited
A
p
plicant to
either su
b
mit ad
ditional information to
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 266 of 344 4908-8412-7925 v4
a reasonable person to conclu
de that
the develop
ment is consistent with the
objective plan
nin
g stan
dards.
allow the City to make such fin
din
g, or
point to w
here in the ap
plication such
information is available, in case the Cityinad
vertently
missed somethin
g (such as
in Items 1, 10, an
d 14 above). T
he City
has acted in
good faith
d
urin
g every step
of processin
g the Project ap
plication. In
response to the City’s in
vitations,
A
p
plicant has largely
declined to provide
the information req
uired for the City to
make a consistency
determination. In this
regard, A
p
plicant is solely responsible
for an
y
delay in receivin
g a consistency
determination for the Project.

Representin
g that the city can en
d the processin
g of an SB 35 project b
y issuin
g a denial letter (an
d after the 60 day (c)(1) period). Representin
g that an ap
plicant
can
not resub
mit an
d
processin
g
be contin
ued
26 Govt Code 65913.4 (a) "…. satisfies
all of the followin
g objective plan
nin
g
stan
dards: (1) T
he develop
ment is a
m
ultifamily
housin
g
develop
ment that
contains two or more residentialu
nits…" etc. T
hen, 65913.4(c)(1)
….U
pon a determination that a
develop
ment su
b
mitted
p
ursuant to
this section is in conflict with an
y of
the objective plan
nin
g stan
dards
specified in su
b
division (a), the local
govern
ment staff or relevant local
plan
nin
g an
d
permittin
g
department
that made the determination shallprovide the develop
ment proponent
written
docu
mentation of w
hich
stan
dard or stan
dards the develop
ment
conflicts with, an
d an ex
planation for
the reason or reasons the develop
ment
conflicts with that stan
dard or
stan
dards. 65913.4 (c)(1)(C) [shall
provide written
docu
mentation]
"within 30 days of su
b
mittal of an
y
develop
ment proposal that was
resu
b
mitted to ad
dress written
See Section I.B of Response toC
hallen
ged
Con
d
uct Letter.

SB 35, codified at Gov. Code § 65913.4,req
uires that cities follow specified
ministerial processin
g
proced
ures for
projects meetin
g specified criteria. For
SB 35 to ap
ply in the first place, a project
m
ust be “a m
ultifamily
housin
g
develop
ment that contains two or more
residential u
nits.” (Gov. Code §
65913.4(a)(1).)T
he City ex
plained to A
p
plicant on
n
u
merous occasions that the Project does
not q
ualify for processin
g
u
n
der SB 35
because it is not a m
ultifamily
housin
g
develop
ment. (E.g., A
u
g
ust 27, 2025
inconsistency
determination, p. 4;
October 6, 2025 inconsistencydetermination, p. 3; Ap
plicant’s Notes
from
Novem
ber 8, 2025 meetin
g
with
City staff, p. 4.) Actin
g in
good faith an
d
to encourage the develop
ment of
housin
g, the City also ex
plained to
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 267 of 344 4908-8412-7925 v4
feed
back
provided
b
y the local
govern
ment p
ursuant to this
paragrap
h" T
he city
has no
authorization to require that anap
plicant 'start again from the
begin
nin
g"- nor be su
bject to chan
ged
or sig
nificantly chan
ged city
plan
nin
g
stan
dards since the ap
plicant desig
ned
the develop
ment an
d su
b
mitted its SB
35 ap
plication. B
y
way of this section,
the Statute provides (an
d the
Legislature definitively inten
ded for)
the absolute rig
ht to resu
b
mit the
ap
plication. If this were not so, a city
could sim
ply req
uire that an ap
plicant
start at the back of the line again eachtime the city raised an issue – an d the
city could start its incom
plete all over
again, creatin
g
very extensive delays,
an
d, restart its 'scopin
g consultation
process' all over again, an
d as
im
portantly the develop
ment would
lose its vestin
g, an
d the develop
ment
be su
bjected to sig
nificant amen
d
ment
b
y the ap
plicant if new ap
plicable
stan
dards had
been created
b
y the local
govern
ment in the interim.

A
p
plicant that w
hile the proposed
project
does not qualify for processin
g or
ap
proval u
n
der SB 35, there are other
paths throu
g
h
w
hich
housin
g could
be
ap
proved on the site. (A
p
plicant’s Notes
from
Novem
ber 8, 2025 meetin
g
with
City staff, p. 5; Decem
ber 3, 2025 denial
letter, p. 3.) A
p
plicant declined either
modify the Project to com
ply
with SB 35
or to p
ursue an
y other legal paths for
developin
g
housin
g on the Project site.
(A
p
plicant’s Notes from
Novem
ber 8,
2025 meetin
g
with
City staff, p. 5 [“I
[ap
plicant] informed [the City] that I was
aware of those [alternative to SB 35]processes, an
d
did
not plan to resu
b
mit
u
n
der those processes.”]
Because the proposed
Project does not
q
ualify for SB 35, A
p
plicant definitively
in
dicated they
will not revise the project
to q
ualify for SB 35, an
d
Ap
plicant
definitively in
dicated they
will not p
ursue
an
y other legal path
way for the ap
proval
of housin
g on the Project site, it was
proper for the City to den
y the Project
ap
plication on
Decem
ber 3, 2025. T
he
City is u
naware of, an
d
A
p
plicant has not
cited, an
y law that req
uires cities to
ap
prove or continue processin
g
housin
g
develop
ment ap
plications in such
circu
mstances.

Needlessly raisin
g the cost of obtainin
g ap
provals
27 T
he city continually raises su
bjects in
writin
g that do not conform to State
law (see this notice), an
d that often
stop
processin
g of this streamlined
ministerial ap
plication, & that lead to
the ap
plicant en
gagin
g in extensive
u
n
necessary
work, an
d
work that is not
req
uired
b
y state law
See Section I.B of Response toC
hallen
ged
Con
d
uct Letter.

T
his com
ment ap
pears to su
m
marize
A
p
plicant’s view of the overall result of
the claims A
p
plicant makes in the items
above.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 268 of 344 4908-8412-7925 v4
As ex
plained above, each the City’s
actions with
w
hich
A
p
plicant takes issue
conform to state law. A
p
plicant has
declined to revise the Project ap
plication
to q
ualify for processin
g
u
n
der SB 35 or
to p
ursue other available legal aven
ues
throu
g
h
w
hich a housin
g
develop
ment
could
be ap
proved on the Project site.

A
n
y ad
ditional ex
pense that A
p
plicant
incurs related to these decisions arecom
pletely
within
A
p
plicant’s control.

Failin
g to follow the processes outlined in
Govt Code 65913.4 as described in the case law, inclu
din
g 40 Main Street Offices L
L
C
v. City of Los Altos
28 See attached excerpts from
Order
Grantin
g
Consolidated
Petitions for
Writ of Man
date, 40 Main Street
Offices, L
L
C
v. City of Los Altos,
Case No. 19C
V349845 (Cou
nty of
Santa Clara, A
pril 24, 2020).

See Section I.B of Response toC
hallen
ged
Con
d
uct Letter.

As ex
plained above, the Project does not
q
ualify for processin
g
u
n
der SB 35, so
the cited case is not ap
plicable.

Nevertheless, the City
has com
plied
with
all its legal obligations in
processin
g the
Project ap
plication, consistent with the
excerpts of the Order in
40 Main Street
attached to the C
hallen
ged
Con
d
uct
Letter. For example, in that case, thecourt fou
n
d that the city
had
not issued
an inconsistency
determination that
com
plied
with the law
because the
determination
did
not cite the stan
dards
that it was p
urportedly ap
plyin
g. Here, in
contrast, both the A
u
g
ust 27, 2025
inconsistency
determination an
d the
October 6, 2025 determination specify(with citation) w
hich stan
dards the City
is ap
plyin
g. In
40 Main Street, the court
also fou
n
d that the city’s inconsistency
determination
was inadeq
uate because it
did
not ex
plain
how the project was
inconsistent with an ap
plicable stan
dard.

Here, in contrast, both the A
u
g
ust 27,
2025 inconsistency
determination an
d the
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 269 of 344 4908-8412-7925 v4
October 6, 2025 determination state thestan
dard that ap
plies, the specifications
the project proposes, an
d the reason that
the proposed
project does not com
ply
with the ap
plicable stan
dard.

Accordin
gly, the City
has complied
with
all ap
plicable legal obligations in
processin
g the Project ap
plication.

Delayin
g ap
proval of housin
g in the residential zones in favor of develop
ment more acceptable in
general to residents of the City in the dow
ntow
n/com
mercial
districts. Followin
g a policy of den
yin
g
housin
g on the im
proper basis that residential lots have or may
have circulation, access, an
d slope issues.
29 City ad
vised ap
plicant that "there are
issues with these lots."
Housin
g of all types, inclu
din
g
housin
g
with
yards, an
d in all parts of
San
Rafael, is su
p
ported
b
y
Affirmatively
F
urtherin
g
Fair Housin
g
req
uirements an
d
Federal Fair
Housin
g law, No Net Loss law,
Housin
g
Crisis Act, Housin
g
Element
Law
T
he C
hallen
ged
Con
d
uct Letter claims,
without citation or further ex
planation,
that the City
has ad
vised
A
p
plicant that
“there are issues with these lots.” T
he
City is u
naware of havin
g
made such
statement an
d
has not identified such
q
uotation in an
y of the docu
ments related
to the processin
g of the Project. To the
extent that the quoted
p
hrase represents
A
p
plicant’s ow
n
parap
hrasin
g, the
A
u
g
ust 27, 2025 an
d
October 6, 2025
inconsistency
determinations identify
“issues with the lots” in that there areinconsistencies between the proposeddevelop ment on each lot an
d the
objective stan
dards that ap
ply to
develop
ment on each lot.

T
his com
ment ap
pears to acknowled
ge
the City’s recent housin
g-related
successes related to incentivizin
g an
d
ap
provin
g
housin
g
develop
ment projects
in the City, inclu
din
g throu
g
h the
adoption of the Dow
ntow
n
Precise Plan
an
d recent ap
proval of entitlements for
projects that would
provide
ap
proximately 2,554 u
nits of housin
g in
San
Rafael area in the near future. T
hese
successes demonstrate the City’s
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 270 of 344 4908-8412-7925 v4
com
mitment to ap
provin
g
housin
g
develop
ment projects in order to meet
an
d exceed its R
H
N
A.

T
he City is well aware of its d
uties an
d
obligations u
n
der the Housin
g
Crisis Act
an
d
Housin
g
Element Law (inclu
din
g the
various no-net-loss rules), of its d
uty to
Affirmatively
F
urther Fair Housin
g
u
n
der
California law, an
d of its d
uties u
n
der the
federal Fair Housin
g
Act. T
he City’s
Major Plan
nin
g
Projects web
page
contains an interactive map that showsthat the City is reviewin g or has ap
proved
major housin
g
develop
ments in a variety
of locations across the City, not just indow
ntow
n/com
mercial districts. All of
these develop
ments provide the amou
nt
of outdoor space (i.e., yards) that islegally req
uired. T
he claim that the City
has followed “a policy of den
yin
g
housin
g on the improper basis that
residential lots have or may
have
circulation, access, an
d slope issues” is
contradicted
b
y the City’s overw
helmin
g
pattern of ap
provin
g
housin
g
develop
ment projects throu
g
hout the
City.

It should be noted that it is the applicant's position that the develop ment is subject to Gov't Code Section 65589.5(d)(5).

T
his com
ment does not allege an
y
im
proper action or violation of state law
b
y the City. No further response is
req
uired.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 271 of 344 Kate Colin, Mayor • Maribeth Bushey, Vice Mayor • Rachel Kertz, Councilmember • Maika Llorens Gulati, Councilmember • Eli Hill, Councilmember August 27, 2025
Chris Sullivan
River Landon LLC
PO Box 29281
San Francisco, CA 94129
[email protected]
Dear Mr. Chris Sullivan:

On May 29, 2024 you submitted a development application (a modified version of application materials submitted on November 9, 2023), pursuant to Government Code Section 65913.4 et seq. (“SB35”) (PLAN23-067; PA23-007) (the “Development Application”) to the City of San Rafael (City) for a proposed housing development project consisting of 18 primary dwelling units and 11 detached accessory dwelling units on six vacant lots in the City of San Rafael at Assessor’s Parcel Number (APN) 011-031-44, 45, 46, 47, 48, & 49 (the “Project”).

The City has analyzed the Development Application, pursuant to Government Code section 65913.4(c)(1),1 for consistency with objective planning standards specified in Government Code section 65913.4(a), including but not limited to City objective zoning standards, objective subdivision standards, and objective design review standards in effect on the date of submittal of the Development Application.

Project Description
The project proposes the construction of 18 primary dwelling units and 11 detached accessory dwelling units on six (6) lots identified as Assessor’s Parcel Numbers APNs:
011-031-44, 45, 46, 47, 48, & 49. The application does not appear to propose a subdivision of land but proposes to construct multiple single family residences and detached ADUs on each lot. The project also includes the construction of a driveway across all parcels of various widths (21 feet six inches to 53 feet- eight inches) as well as a secondary access and hammerhead serving the upper units. 1 This determination has been issued within 60 days of September 30, 2025 pursuant to Government Code section 65913.4(c)(1)(A). Note that because the Application invokes and is filed as an SB 35 development application, the Application may only be deemed submitted as of execution of the AB 168 Enforceable Agreement on June 30, 2025, and was thus not submitted within 180 days of the May 15, 2023 preliminary application. As such, the preliminary application expired and confers no vesting of standards in place at the time of submittal of the preliminary application. All standards identified in this letter, with the exception of the Objective Design Standards set forth in Section 5, were in effect on May 15, 2023 and have not changed or been modified since then. The Objective Design Standards were adopted by the City Council on March 18, 2024.

Attachment B: August 27, 2025 City inconsistency determination on Project
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 272 of 344 2 Kate Colin, Mayor • Maribeth Bushey, Vice Mayor • Rachel Kertz, Councilmember • Maika Llorens Gulati, Councilmember • Eli Hill, Councilmember The project site is comprised of six (6) vacant lots identified as Assessor’s Parcel Numbers APNs: 011-031-44, 45, 46, 47, 48, & 49. The project site totals 61,844 sf (1.4 acres) and is designated Low Density Residential by the City of San Rafael General Plan and is zoned R10 with a potential Hillside Overlay. The proposed project is subject to standards in the Hillside Development Overlay District as all six lots have an average slope of over 25 percent (Chapter 14.12.020; Section 14.16.200).

Consistency Review
This consistency review has been conducted based on application materials submitted to date. If the proposed Project, application materials for the Project, or proposal on the Project Site are modified, these changes may result in updates to the City’s consistency review determinations and may trigger additional review pursuant to Government Code section 65913.4 subds. (a) and (c)(1)(C).

This consistency determination does not analyze the Project’s consistency with postentitlement permit requirements, including but not limited to standards and regulations applicable to any and all building permits (including but not limited to demolition, grading, foundation, and/or vertical infrastructure building permits). Prior to the issuance of any building permit, the Project must comply with all Sanitary District, Fire Department, Marin Municipal Water Distrct, utility companies’, and other relevant local/State/federal agencies’ regulations that are directly applicable to the project.

Additionally, as the City has previously notified you, you have failed to reimburse the City for fees related to the processing of the Development Application. These fees must be paid in full.

Determination of Inconsistency.

The Project is inconsistent with multiple City objective zoning standards, objective subdivision standards, and objective design review standards. Additionally, the Project is inconsistent with provisions of State law. These inconsistencies are detailed in this letter. Because the Project is inconsistent with City standards as well as State law, the City cannot approve the Project as proposed. However, you are free to resubmit a modified development application, including modified plans and/or additional requests for waivers and/or incentives/concessions under State Density Bonus Laws (“SDBL”).

Should you choose to do so, the City will review your resubmitted development application pursuant to Government Code section 65913.4(c)(1) within the timelines set forth in section 65913.4(c)(1)(C).

Should you have any questions, please contact me at Margaret.kavanaugh[email protected].

Thank you,
Margaret Kavanaugh-Lynch
Planning Manager
City of San Rafael
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 273 of 344 3 Kate Colin, Mayor • Maribeth Bushey, Vice Mayor • Rachel Kertz, Councilmember • Maika Llorens Gulati, Councilmember • Eli Hill, Councilmember

ATTACHMENTS

1. Planning Division Consistency Review Comments

2. Housing Division Consistency Review Comments

3. Fire Department Consistency Review Comments

4. Department of Public Works Consistency Review Comments Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 274 of 344

4914-0207-9328 v5
Attachment 1: Planning Division Consistency Determinations

1. Inconsistency with Government Code 65913.4(a).

The Project is ineligible for the streamlined ministerial approval process set forth in Government Code section 65913.4 et seq. (“SB 35”) because the project is not a “multifamily housing development” (see Gov. Code § 65913.4(a)(1).) Pursuant to San Rafael Municipal Code section 14.03.030 – Definitions, multifamily residential development means “medium and high density residential development containing three (3) or more attached dwelling units in one (1) or more structures located on a single parcel or common lot.” The Project proposes multiple, detached, independent single family dwellings per single family lot and does not constitute a multifamily housing development pursuant to either SB 35 or the San Rafael Municipal Code.

2. Inconsistency with City of San Rafael General Plan
The Project site and each parcel within the Project site has a General Plan designation of Low Density Residential. The Project is inconsistent with various Low Density Residential development standards.

Table 1.1 City of San Rafael General Plan
Low Density Residential Density (General Plan p 3-6;3-10) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore
the Project is not
consistent with this
standard. Applicant
has incorrectly
calculated density
therefore, the project
is not consistent with
density standards.

Established density standards for the Low Density Residential land use designation are 2.2 to 8.7 units/net acre. Per the City of San Rafael General Plan, density is expressed as the number of housing units permitted on each net acre of land (this is also referred to as “net density.”) A net acre of land excludes public and private streets, easements, and areas that are considered “unbuildable” due to natural constraints such as wetlands and steep slopes. Areas that are used for facilities serving residents of the development (including recreational features such as swimming pools and private playgrounds) driveways and accessways, parking lots, and parcels developed with housing are considered “developable” and are included in net acreage and the net density calculation (General Plan

density and has not excluded easements and other undevelopable areas. While it is unclear from the application materials what the net acreage of the site is (after excluding roadways, easements, and undevelopable steep slopes), the net density would be even greater than the gross density, which already exceeds the permissible net density. The City needs calculations of net density in order to verify the base project; however, given that gross densities are typically 20 to 30 percent lower than net densities, the proposed density for the base project likely exceeds the density standard established by the General Plan.

The City is unable to analyze consistency with net density at this time and needs more information, including a Preliminary Title Report, that includes easement information. Please provide calculations for Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 275 of 344

4914-0207-9328 v5
areas of public and private streets, and estimated area of unbuildable land, including land within the creek and drainage setbacks, and areas of geologic instability.

Maximum Height - (General Plan p. 3-25)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation. While a
waiver pursuant to the
SDBL, has been sought
to exceed height
standards, it does not
appear height
standards would
physically preclude the
construction of the
Project at the proposed
density (see Gov. Code
§ 65915(e)(1).)
The General Plan limits height on the site to 30 feet tall. All primary dwellings exceed 30 feet in height.

Parking and Driveways (General Plan Policy CDP-4.9)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation.

Parking is required to be screened from the street by landscaping. Plans do not show screening of parking.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 276 of 344

4914-0207-9328 v5

3. Inconsistency with City of San Rafael Zoning Code (Title 14) The project site is zoned R10 with a potential Hillside Overlay. The proposed project is subject to standards in the Hillside Development Overlay District as all existing lots have an average slope exceeding 25 percent, with existing average slopes ranging from 44.5 to 47.3 percent (SRMC Chapter 14.12.020 and SRMC Section 14.16.200). The Project is not consistent with several standards contained in the City of San Rafael Zoning Code.

Table 1.2
Base District Regulations (Chapter 14.04)
Single-Family Residential District Purpose (Section 14.04.010.H - Specific purposes) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation. A waiver
pursuant to the SDBL, has
been sought to exceed the
maximum “unit count.”
The R-10 single-family zoning district allows for detached singlefamily residential developments, which by definition means “low density residential development containing one (1) primary residential "dwelling unit" for use by a single household on a single parcel.” (SRMC § 14.03.030). The project proposes to construct three (3) single family residences and additional ADUs on each lot. Because the Proposes multiple single family dwellings per lot, the Project is inconsistent with this standard. Additionally, the Project proposes residential uses that are not allowed uses per Table 14.04.020. Per Table 14.04.020, uses that are not included in the land use table are not allowed.

SRMC Section 14.030.030 (Definitions):
"Residential, single-family" means low density
residential development containing one (1) primary
residential "dwelling unit" for use by a single
household on a single parcel. This definition includes
use of a single-family dwelling and/or accessory
dwelling unit as a household for "transitional housing" or "supportive housing" as defined under the
California Health and Safety Code.
"Residential, duplex" means one (1) structure on a
single lot containing two (2) dwelling units, each of
which is functionally separate from the other. This
definition includes use of a duplex unit(s) as a
household for "transitional housing" and "supportive
housing" as defined under the State Health and
Safety Code.
"Residential, multifamily" means medium and high
density residential development, including a
"transitional housing development" or "supportive
housing" as defined under State Health and Safety
Code Section 50675.2 (and subsequent
amendments), containing three (3) or more attached
dwelling units in one (1) or more structures located
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 277 of 344

4914-0207-9328 v5
on a single parcel or common lot.

Density (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development regulation.

The R10 zoning district allows a maximum of 1 unit per 10,000 sf.

The project proposes 3 units per 10,000 sf and therefore exceeds this standard.

Setbacks (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development regulation.

However, an
incentive/concession
pursuant to the SDBL, has
been sought to exceed this
standard.

The R10 zoning district requires a minimum side yard setback of 10 feet. All lots propose development with side yard setbacks of approximately 4 feet. The R10 zoning district requires a minimum rear yard setback of 10 feet. All lots have rear yard setbacks of approximately 2.5 feet. The R10 zoning district requires a minimum front yard setback of 20 feet. All lots propose development with front yard setbacks of approximately 2.5 to 9 feet 11 inches.

Height (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard. While a waiver
pursuant to the SDBL, has
been sought to exceed
height standards, it does
not appear height
standards would physically
preclude the construction of
the Project at the proposed
density (see Gov. Code §
65915(e)(1).)
The R 10 zoning district requires a maximum height of 30 feet tall. (General Plan p. 3-25.) All primary units appear to exceed 30 feet in height, although insufficient information has been provided in plans to verify the proposed height using the formula required for lots in the Hillside Overlay District, “Hillside Lots”. SRMC Section 14.03.030 (Definitions) defines height as:
"Height, hillside" means the height of all structures,
fences and walls measured vertically from the existing
(e.g., natural) grade to the uppermost point of the roof edge, wall parapet, mansard or other feature above the
existing grade at any given point. See illustration below.

Height of Proposed Structures.

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4914-0207-9328 v5
Maximum Lot Coverage (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Project consistent with
this development regulation.

However, an
incentive/concession
pursuant to the SDBL, has
been sought to exceed this
standard.

Maximum lot coverage for the R10 zoning district is 40 percent of the size of the lot, which varies for each lot. Lot coverage is defined as:
"Lot coverage" means that portion of the lot covered by buildings, including stairways; covered walkways;
covered patios; covered parking structures; covered
decks or uncovered decks over thirty inches (30") in
height; and detached recreational and storage structures that are greater than one hundred (120) square feet in
size. Lot coverage excludes residential fences, ground
level landscaped areas, walkways and paved areas,
uncovered patios and decks thirty inches (30") or less in height, uncovered recreational and uncovered parking
and driveway areas, detached garden sheds, tool sheds,
playhouses and similar detached accessory structures
that do not require a building permit and are not greater than one hundred twenty (120) square feet in size and no taller than eight feet (8') in height, and portions of
structures that are located below grade.

Maximum Lot Coverage and Upper Story
APN
LOT
SF1
Max Lot
Coverage
Proposed Coverage1
011-031-44 10,952
4,380.8
5498
011-031-45 10,575
4,230
5498
011-031-46 10,159
4,063.6
5498
011-031-47 10,255
4,102
5498
011-031-48 10,159
4,063
5498
011-031-49 10,064
4,025.6
5498
Maximum Upper Story (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 279 of 344

4914-0207-9328 v5
The Project is not
consistent with this
development regulation.

The maximum size of upper story development in the R10 zoning district is limited to 75 percent of the lot coverage standard.

APN LOT SF Max Upper Story
Proposed Upper
Story
011-031-44 10,952
3,285.6
5,853
011-031-45 10,575
3,172
5,853
011-031-46 10,159
3,047.72
5,853
011-031-47 10,255
3,076.5
5,853
011-031-48 10,159
3,047.72
5,853
011-031-49 10,064
3,019.2
5,853
Accessory Dwelling Units (14.16.285)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development regulation.

No more than one detached new construction ADU is permitted on lots with an existing or proposed single-family dwelling (see Gov.

Code, § 66323, subd. (a)(2) and San Rafael Municipal Code §

14.16.285(E)(2).) The Project proposes more than one detached new construction ADU on five of the six existing lots and is therefore inconsistent with both San Rafael and State laws regarding the maximum number of detached ADUs.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 280 of 344 Kate Colin, Mayor • Maribeth Bushey, Vice Mayor • Rachel Kertz, Councilmember • Maika Llorens Gulati, Councilmember • Eli Hill, Councilmember Hillside Development Overlay District (Chapter 14.12)
Building Stepback - 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore
the Project is not
consistent with this
standard.

Per San Rafael Municipal Code Section 14.12.030:

On non-downhill slope, walls facing front and side property lines shall have a twenty-foot (20′) height limit measured from existing grade shall be observed within all areas within fifteen feet (15′) of the maximum building envelope limit. To allow for design flexibility on non-downhill slopes, an encroachment into the street front, street side and interior side stepback is permitted along twenty-five percent (25%) of the building length.

The proposed plans do not specify the required stepbacks, making it unclear whether compliance can be confirmed without supporting calculations. Certain portions of the proposed residence appear to exceed the stepback requirement; however, it is undetermined whether this exceeds the allowable 25% threshold.

Building Setbacks 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
standard. However, an
incentive/concession
pursuant to the SDBL,
has been sought to
exceed this standard.

Structures may encroach into a required yard or setback for a distance of not more than one-half (½) of the required yard or setback provided that the decrease minimizes the impact of hillside development and grading, subject to approval by the hearing body of an environmental and design review permit. If such a reduction is granted, a compensating increase in setback is required in the opposing setback, i.e., a five-foot reduction in a front yard setback would increase the rear yard setback by five feet (5').. The setbacks shown on the plans illustrate that this development standard is not met on any parcel.

Natural State - 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
standard. However, a
waiver pursuant to the
SDBL, has been sought
to exceed this standard.

Natural state" means all portions of lots that remain undeveloped and undisturbed. Grading, excavating, filling and/or the construction roadways, driveways, parking areas and structures are prohibited. All six lots exceed natural state requirements. The proposed plans do not accurately illustrate the required and proposed natural state requirements; however, estimates using only the estimated lot coverage by the City of San Rafael indicate all lots exceed this standard.

Average Slope and Natural State Requirements
APN
Size

AVERAGE
SLOPE%

MIN NATURAL
STATE

REQUIREMENT

PROPOSED

NATURAL
STATE
011-
031-44
10,952sf

44.09 69.09%
5498sq.ft of lot
coverage= 50.20%

49.8% Natural
State
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 281 of 344

4914-0207-9328 v5
011-
031-45
10,575
sf

44.09 69.09%
5498sq.ft of lot
coverage= 51.99
= 48.01% Natural
State
011-
031-46
10,159
sf

43.21 68.21%
5,498sq.ft of lot
coverage= 54.12%

48.88% Natural
State
011-
031-47
10,255
sf

43.21 68.21%
5,498sq.ft of lot
coverage=54.12%

48.88% Natural
State
011-
031-48
10,159
sf

43.00 68%
5,498sq.ft of lot
coverage= 54.12%

45.88% Natural
State
011-
031-49
10,064
sf

42.00 67%
5,498sq.ft of lot
coverage= 54.63%

45.37% Natural
State
Gross Building Square Footage - 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
standard. A waiver
pursuant to the SDBL,
has been sought to
exceed “Floor Area”
standards.

The maximum permitted gross building square footage of all structures (including garages and accessory structures over 120 sf is limited to 2,500 sf plus 10 percent of the lot area, with the maximum gross square footage set at 6,500 sf. All lots exceed this standard.

Parking Requirements - 14.12.030 - Property development standards (-H) and Parking Requirements - Section 14.18.040
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard. A waiver
or
incentive/concession
pursuant to the
SDBL, has been
sought to exceed
“parking spaces”
standards. However,
the Development
Single-family residential developments must provide two covered spaces per unit. (SRMC Table 14.18.040.) Additionally, on streets less than twenty-six feet (26') wide, a minimum of two (2) additional on-site parking spaces must be provided (not on the driveway apron). (SRMC Ch.

14.12.030(F).)
Department of Public Works and the Fire Department have indicated that additional information is required to determine if the proposed roads comply with both Fire and Building code.

As the floor plans for the primary structure are not specific to each proposed location, it is not possible to determine based on the plan set provided if each unit has any covered parking. Further, the parking plans provided are not sufficient to determine the exact location of the spaces related to the dwelling units, so it is not possible to determine if the additional uncovered parking requirements are met for each site.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 282 of 344

4914-0207-9328 v5
Application does not
identify whether a
waiver or an
incentive/concession
will be sought for this
standard.

Streets and Driveways - 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

New streets and driveway grades shall not exceed 18 percent unless an exception has been granted by the hearing body and the design has been recommended by the public works director and fire marshal to allow a driveway or street slope up to a maximum 25 percent. The project plans do not appear to indicate the proposed slope and therefore consistency cannot be determined at this time.

Site and Use Regulations (Chapter 14.16)
Affordable Housing - Section 14.16.030
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

Pursuant to San Rafael Municipal Code Section 14.16.030, residential development projects must provide affordable housing units as described in the policies and procedures specified in the San Rafael City Council's Guidelines for the Administration of the Affordable Housing Trust Fund (Resolution 14890). Affordable housing units must be dispersed throughout the residential development project and must be of a similar mix and type to that of the residential development project as a whole, including, but not limited to (1) the same or substantially similar mix of unit size (e.g., number of bedrooms, square footage) and (2) compatible with the design, materials, amenities, and appearance of the other developed units. (Resolution 14890, Section C.) The Project does not clearly detail how it would meet the City’s affordable housing requirements and consistency cannot be determined at this time.

Fences and Walls Section 14.16.140
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

Fences located within the front and streetside setbacks may be 4 feet tall while fences not exceeding seven feet (7’) in height may be located within the required rear yard or interior side yard. Retaining walls not exceeding a height of four feet (4’) in height may be located within the required rear yard and interior side yard. (SRMC Ch. 14.16.140.) Compliance with fence standards cannot be determined at this time.

Swimming pools, hot tubs, and other mechanical equipment Section 14.16.320 Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
If a pump or filter or any similar mechanical equipment, including new but not limited to transformers for electric vehicle charging stations and wind energy systems, is located within fifteen feet (15') of any bedroom window on an adjacent lot, a three (3) sided solid enclosure with baffles Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 283 of 344

4914-0207-9328 v5
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.
to screen the equipment from the bedroom, or equally effective measure(s), shall be provided to reduce noise impact. Sound attenuation shall be provided around mechanical equipment to ensure that any mechanical noise that is perceptible at the property line (and generally measured in direct line of sight of the equipment) is attenuated to the maximum extent practicable and that daytime/nighttime thresholds established under SRMC Table 8.13-1 for the applicable zoning district are not exceeded.

Water-efficient landscape Section 14.16.370
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

Landscape and irrigation improvements are required to comply with water-efficient landscape requirements and to monitor water usage for irrigation, as mandated under California Government Code Section 65595(c). For the purpose of administering this state mandate, the City of San Rafael hereby adopts by reference, the Marin Municipal Water District (MMWD) Ordinance (Water Conservation), as adopted and periodically amended. The Project does not clearly detail how it would meet these requirements and consistency cannot be determined at this time.

Parking Space Dimensions - Section 14.18.100
Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard. A waiver
or
incentive/concession
pursuant to the
SDBL, has been
sought to exceed
“parking spaces”
standards. However,
the Development
Application does not
identify whether a
waiver or an
incentive/concession
will be sought for this
standard.

This section specifies parking space dimensions for standard and compact parking stalls. While some dimensions are provided, additional information is needed to verify compliance.

Access to the Public Right-of-Way - Section 14.18.140
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
Subsection (A) of this section requires driveways serving residential uses with less than 6 vehicle parking spaces to be a minimum of 10 feet wide.

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4914-0207-9328 v5

4. City of San Rafael Hillside Design Guidelines
Because the proposed project is subject to the Hillside Development Overlay District of the SRMC, it is also subject to the Design Guidelines Applicable to All Hillside Residential Development Projects. Table 1.3 below evaluates the Project for consistency with the Hillside Design Guidelines.

Table 1.3
Design Guidelines Applicable to All Hillside Residential Development Projects IV.A2. Preservation of Significant Trees
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the Design Guidelines defines significant trees as “any tree which is in good health and form and is more than 12 inches in diameter as measured 4 feet-6
inches above the root crown” and “any tree of the Quercus (OAK) genus which is in good health and form and is more than 6 inches in diameter as measured 4 feet-6 inches
above the root crown." When a significant tree is removed, it shall be replaced at a ratio of 3 new trees for every tree removed at a minimum size of 15 gallon. The plans do not clearly indicate the location, type, proposed removal, or enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.
to review and determination by the city engineer, noting that the maximum driveway grade typically allowed is eighteen percent (18%*).

While some dimensions are provided, additional information is needed to verify compliance.
* This standard is further refined in the Hillside Development Section, noted above.

Environmental and Design Review Permits (Chapter 14.25) Review Criteria – Section 14.25.050
Consistency Review Consideration Factors and Notes
The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

Utility Service. Utility connections shall be installed underground.

Proposed method of sanitary sewage disposal for all buildings shall be indicated. Refuse collection areas shall be screened and located in areas convenient both to users and to persons who make collections. There shall be adequate ingress and egress to all utilities. (Note: Recycling facilities must meet Standard of Resolution 93-57.) Additional information is needed to verify compliance.

The Applicant has
not submitted
sufficient
information to
enable the City to
analyze this
standard; therefore
the Project is not
consistent with this
standard.

Walls, Fences, and Screening. Walls, fences and screening shall be used to screen parking and loading areas, refuse collection areas and mechanical equipment from view. Screening of mechanical equipment shall be designed as an integrated architectural component of the building and the landscape. Utility meters and transformers shall be incorporated into the overall project design. Additional information is needed to verify compliance.

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proposed replanting of trees as a result of the proposed project and as such, additional information is needed to verify compliance with this objective design standard.

IV.A5. Street Layout, Driveway and Parking Design
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the Design Guidelines establishes that driveway grades may be a maximum of 18%. This section of the Design Guidelines also requires that parking landings shall be required on all driveways over 10% grade. While some dimensions are provided, additional information is needed to verify consistency with this standard.

IV.A7. Hillside Architectural Character
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the Design Guidelines establishes that fences and walls over 3 feet in height facing a public street provide a fully landscaped buffer at least 5 feet deep. Additionally, this section establishes that retaining walls associated with lots are limited to:
• 4 feet in height for retaining walls upslope from the structure • 3 feet in height for retaining walls downslope from the structure
• 3 feet in height for terraced retaining walls
• 4 feet for freestanding walls along the front yard
• 4 feet for walls at the base of slopes along roadways There is no information about proposed fences or walls and as such, additional information is needed to verify compliance.

IV. A9. Site Lighting
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the Design Guidelines establishes that any overhead lighting for residential parking areas must be mounted at a maximum of 15 feet, and lighting for pedestrian areas must be 8 feet or less. No lighting information is provided and as such, additional information is needed to verify compliance.

5. City of San Rafael Objective Design Standards (ODS)
The San Rafael Objective Standards apply to all residential projects. Table 1.4 evaluates the Project for consistency with the ODS and includes additional consideration factors and notes for context.

Table 1.4
Objective Design Standards
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1. Site Planning and Layout (Building Orientation)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires buildings adjacent to a public street or alley to design primary building entrances to face the public street or alley. There is not enough
information provided to verify if primary building entrances are designed to face Coleman Drive, a public street. The residences appear to face Coleman Drive, but the exact
location of individual building entrances is not clearly shown on the Plans. As such, compliance with this ODS cannot be verified.

1. Site Planning and Layout (Windows and Privacy)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires windows that are within 10 feet vertically or horizontally of facing residential bedroom windows or private open space of existing residences to have an opaque or translucent glazing at or below 5 feet above finished floor or be offset a minimum of 5 feet horizontally (as measured by nearest edge of existing facing window). The project is abutting existing residential development to the north, south, and west. The plans do not include enough information to determine whether new residences are within 10 feet vertically or horizontally of facing residential bedroom windows or private open space of existing residences. As such, compliance with this ODS cannot be verified.

1. Site Planning and Layout (Ensure Adequate Screening) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires screening between new residential development and adjacent existing residential uses to obscure direct sight lines between private yards. Such screening shall consist of a continuous view-obscuring wood fence, masonry wall, or an irrigated and maintained evergreen hedge, not less than four feet in height, and not more than six feet in height, which may be broken only for access driveways and walkways. The width of screens consisting of evergreen hedges shall be at least 40% of their height. The project is adjacent to existing residential uses. The plans do not show if and/or how the project will incorporate screening between the proposed and existing residences.

This section of the ODS also requires trash and refuse collection and disposal facilities to be enclosed by a solid fence or hedge that is no lower than the facilities themselves, and requires these facilities to be covered. The plans do not provide details regarding the location of refuse bins. As such, compliance with this ODS cannot be verified.

1. Site Planning and Layout (Ground Level Utility Location and Utility Screening) Consistency Review Consideration Factors and Notes
The Applicant has not This section of the ODS requires back flow preventers, transformers, Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 287 of 344

4914-0207-9328 v5
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.
and other utilities to be out of sight either in sidewalk vaults or screened from view with either architecture or landscaping. Utility transformers or boxes are required to be underground or, if not allowed by PG&E, screened and not visible from the public right of way. There is not enough information to determine whether the project includes ground level utilities. If the project includes and/or requires such utilities, the location shall be shown on a utility plan and shall demonstrate screening in compliance with this standard.

1. Site Planning and Layout (Parking Garage)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires any parking visible from the public right-of-way to be screened by continuous landscaping, or other architectural features. There is not enough information to verify whether parking will be screened by continuous landscaping or other architectural features.

2. Building Design and Architecture (Trim Requirements) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

The section of the ODS requires stucco foam trim to be limited to one element of trim detail and shall not be used as the sole trim molding material. The plans do not include materials information and as such, additional information is needed to verify compliance.

2. Building Design and Architecture (Colors and Reflective Materials) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS sets forth the following related to colors and materials:

1. Facades shall include between 2 and 4 colors. One color shall be the ‘main color’ and be used on no less than 70% of the non- glazed area of a building’s façade. The other colors shall be defined each as an ‘accent color’ each of which shall not be used on more than 30% of the non-glazed area of a building’s façade

2. Buildings shall include the same colors and materials on all elevations. At least one accent color is required to appear on all elevations.

3. “Gloss” paint finishes shall not be used for a building’s main color but may be used for accent colors and on trim. The highest sheen that may be used for a main color is semi-gloss.

4. The main color shall have a light reflective value of between 20% and 80%. Trim and accent colors may use colors of any light reflective value.

5. Fluorescent, iridescent, or metallic paints are prohibited.

6. Metal seam or other metal roofing, if used, shall be anodized, fluoro-coated, or painted with a non-gloss and non-glare finish.

Copper and lead roofs shall be natural or pre-oxidized.

7. Any colors used on stucco walls shall be incorporated into the stucco mixture as an integral color.

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The plans do not include colors and materials information and as such, additional information is needed to verify compliance.

2. Building Design and Architecture (Blank Walls)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires All building walls to have a minimum 15% transparency on each floor. Ground floors without a lobby shall exhibit a variegated façade with changes in transparencies and materials so that no one form represents more than 75% of the surface area. The plans do not include enough information to verify consistency with this standard.

2. Building Design and Architecture (Rooftop Utility Screening) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires all mechanical equipment to be screened and shall not project above its enclosure. Roof-mounted mechanical equipment shall be screened from public view by a parapet wall, decorative equipment screen, or other architectural treatment. The point of view for determining visibility shall be five feet above grade at a distance of 200 feet from any point of the structure at ground level. Additional information regarding the location and screening of utility equipment is needed to verify consistency with this standard.

3. Open Space and Landscape (Useable Outdoor Space)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires the project to provide a minimum of 100 square feet of useable open space per dwelling unit and specifies objective standards related to accessibility, unit assignment, dimensions, balconies, slope, landscaping, and amenities of these useable open space areas. Additional information regarding useable open spaces is needed to verify consistency with this standard.

4. Lighting (Light and Glare)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable
the City to analyze this
standard; therefore the
Project is not
consistent with this
standard.

This section of the ODS requires exterior lights to have a minimum ground level illumination of 1 foot-candle at doorways and entryways.

Elsewhere, exterior lights are required to have a maximum ground level illumination of ½ foot-candle. Additionally, this section requires all lighting sources to be shielded from view from the public right of way and from neighboring properties and specifies that exterior lights:
• shall produce no indirect light extending 5 ft. beyond a property line
• shall not be placed higher than the height of the principal structure.
• shall have a maximum angle of direct illumination of 60 degrees if placed more than 6 ft high.
• shall be rated for 4500 Kelvins or fewer.

No lighting information was provided and as such, additional information is needed to verify consistency with this standard.

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Attachment 2: Housing Division Consistency Review Comments Table 2.1 below evaluates the Project for consistency with the City’s affordable housing requirements (SRMC Section 14.16.030 and Resolution 14890) and includes additional consideration factors and notes for context.

Table 2.1
SRMC Section 14.16.030 and City Council Resolution 14890 Location. Affordable housing units shall be dispersed throughout the residential development project. Units may be clustered within the residential project when the city determines that such clustering furthers affordable housing opportunities and where such clustering is consistent with Federal and State fair housing laws. (Section C of Resolution 14890)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

No information or material was submitted to show compliance with Section C of Resolution 14890. Because the plans submitted do not show the location of the affordable units, consistency cannot be confirmed.

Size. The affordable housing units shall be comparable in size to the market-rate units within the residential development project, as measured by net habitable square footage.

For purposes of this provision, “comparable size” means having habitable square footage proportionate to the range of unit sizes provided for market-rate units in the project. (Section C(1) of Resolution 14890)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

No information or material was submitted to show compliance with Section C(1) of Resolution 14890. Because the submittal does not indicate which units are affordable units, consistency cannot be confirmed.

Type. The affordable housing units shall possess a distribution of bedroom counts proportionate to that of the market-rate units within the residential development project. (Section C(1) of Resolution 14890)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
No information or material was submitted to show compliance with Section C(1) of Resolution 14890. Because the submittal does not Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 290 of 344

4914-0207-9328 v5
standard; therefore the
Project is not consistent
with this standard.
indicate which units are affordable units, consistency cannot be confirmed.

Design and Materials. The exterior and interior design of the affordable housing units shall be of the same design, materials, amenities, quality of finish, and appearance of the other developed units. (Section C(2) of Resolution 14890)
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

No information or material was submitted to show compliance with Section C(2) of Resolution 14890, so consistency cannot be confirmed.

Access. The affordable housing units shall have access to the same amenities and common spaces as the market rate units. (Section C(2) of Resolution 14890) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

No information or material was submitted to show compliance with Section C(2) of Resolution 14890, so consistency cannot be confirmed.

Tenure. The affordable housing units shall have the same tenure mix (e.g., rental or ownership) as the residential development project as a whole. If the Developer offers some or all market-rate units for sale, an equivalent proportion of affordable housing units shall also be offered for sale.

Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

No information or material was submitted to show compliance with Section C of Resolution 14890, so consistency cannot be confirmed.

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4914-0207-9328 v5
Attachment 3: Fire Department Consistency Review Comments Table 5.1
Fire Regulations
Fire Apparatus Access Roads – SRMC Chapter 4. 2022 California Fire Code Section 503, Appendix D, and all applicable National Fire Protection Standards.

Consistency Review Consideration Factors and Notes
The project is not
consistent with this
development regulation.

The current plans do not clearly demonstrate compliance with the provisions of these sections of the code.

Fire Flow for Fire Hydrants and fire sprinkler systems - SRMC Chapter 4. 2022 California Fire Code sections 507, Appendix BB, Appendix C, Appendix CC, and all applicable National Fire Protection Association standards.

Consistency Review Consideration Factors and Notes
The project is not
consistent with this
development regulation.

The current plans do not clearly demonstrate compliance with the provisions of these sections of the code.

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Attachment 4: Department of Public Works Review Comments Chapter 15.06.020 - Utilities and Services
Consistency Review Consideration Factors and Notes
The project is inconsistent with
this standard.

The Project does not appear to be served by the following utilities: water, wastewater and sewage, gas and electric, communication services.

Section 15.06.050(h) – Street classification requirements Consistency Review Consideration Factors and Notes
The Development Application contains insufficient
information to analyze consistency with this
standard and therefore the Project is inconsistent
with this standard.

The plans do not show that the private
street meets all public street standards for
road pavement and right of way width.

9.30.151 - Land development standards for permanent stormwater controls for new and redevelopments.

Where required by the Phase II Stormwater Permit Provision E.12, or where required by the nature and extent of a proposed project and where deemed appropriate by the agency, every applicant shall develop, submit and implement a Stormwater Control Plan (SCP) as described in the section.

Consistency Review Consideration Factors and Notes Requested / Recommended
Action
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard.

This project creates or replace more than
5,000 square feet of impervious area and
therefore will be considered a regulated
project. A stormwater control plan is
required by the Phase II Stormwater
Permit Provision E.12.

Prepare a storm
water control plan in
accordance with
section 9.30.151 of
the municipal code.

Section 15.06.050(g) – Hillside Streets
Consistency Review Consideration Factors and Notes
The Development
Application contains
insufficient information to
analyze consistency with this
standard and therefore the
Project is inconsistent with
this standard
The plans show a new street transversing the 6 Project
parcels. There is no indication whether this street is public or private. Therefore, the Project is inconsistent with standards required for streets development in hillside areas where property slopes are over 25% and standards that all new streets in hillside areas comply with Section 15.07.030.

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4914-0207-9328 v5
Section 15.06.070 - General design conditions for streets Consistency Review Consideration Factors and Notes
The Development
Application contains
insufficient information to
analyze consistency with this
standard and therefore the
Project is inconsistent with
this standard
The plans show a new street traversing the 6 Project parcels so it is subject the general design conditions for streets.

There is insufficient grade and curve radius data to verify consistency with this section.

Section 15.06.080 - Sidewalks and walkways
Consistency Review Consideration Factors and Notes
The Development
Application contains
insufficient information to
analyze consistency with this
standard and therefore the
Project is inconsistent with
this standard
The plans show a new street traversing the 6 Project
parcels. There is insufficient information to determine if there is a sidewalk or walkway incorporated into the roadway to determine consistency with this standard.

Section 15.06.080 - Sidewalks and walkways
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
The plans show a new street traversing the 6 Project parcels.

There is insufficient information to determine if there is a sidewalk or walkway incorporated into the roadway to determine
consistency with this standard.

Section 15.06.080 - Sidewalks and walkways
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
The plans show a new street traversing the 6 Project parcels.

There is insufficient information to determine if there is a sidewalk or walkway incorporated into the roadway to determine
consistency with this standard.

Section 15.06.110 - Grading and drainage
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4914-0207-9328 v5
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
Plans lack sufficient grading information to determine if grading slopes do not exceed 2:1 or how tall any proposed retaining walls are.

Section 15.06.120 - Fire protection measures
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
The plans lack sufficient information to conclude that fire hydrant requirements are met.

Section 15.06.130 - Undergrounding of utilities
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
The plans do not clearly show the proposed utilities serving the project.

Section 15.07.020 - Lot design standards
Consistency Review Consideration Factors and Notes
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore the
Project is inconsistent with this
standard
The project is developing on hillside lots with slopes over 25%.

The lots do not appear to meet the average lot width requirements provided in section 15.07.020B.

Section 14.18.130 - Parking facility dimensions and design Consistency Review Consideration Factors and Notes
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4914-0207-9328 v5
The Development Application
contains insufficient information
to analyze consistency with this
standard and therefore
additional information is
required.

The plans do not clearly dimension the on-site roadway, which also serves as a drive aisle for parked vehicles to backup.

The following additional courtesy comments are provided:

1. While this determination does not analyze consistency with post-entitlement requirements such as the California Building Code, as stated previously, no building permits will be issued if the Project is inconsistent with such postentitlement standards and requirements. Please be advised of the following:
a. The 2022 California Residential Code (CRC) SECTION R311- MEANS OF EGRESS applies:
i. R311.1 Means of egress. Dwellings shall be provided with a means of egress in accordance with this section. The means of egress shall provide a continuous and unobstructed path of vertical and horizontal egress travel from all portions of the dwelling to the required egress door without requiring travel through a garage. The required egress door shall open directly into a public right of way or to a yard or court that opens to a public way.
b. The 2022 California Building Code (CBC) SECTION 1029 - EGRESS COURTS applies:
i. 1029.2 Width or capacity. The required capacity of egress courts shall be determined as specified in Section 1005.1, but the minimum width shall be not less than 44 inches (1118mm), except as specified herein. Egress courts serving Group R-3 and U occupancies shall not be less than 36 inches (914mm) in width. The required capacity and width of egress courts shall be unobstructed to a height of 7 feet (2134mm). The width of the egress court shall be not less than the required capacity.

The following frontage/off-site improvements may be required to comply with postentitlement building, fire, and other standards:
a. Upgrade Coleman Drive roadway width along project frontage. b. Extend new curb and gutter along the project frontage to match existing curb and gutter ending near the proposed driveway approach. Include a minimum 2’ wide shoulder width from the toe of the hill or wall to the back of the new curb.
c. Install a culvert or concrete valley gutter at the driveway approach to allow uphill water on the roadside to travel past the driveway approach. d. Remove and replace the existing sand bag retaining wall along the project frontage with a new wall to support the proposed driveway and improvements.
e. Install underground storm drain piping and catch basins as necessary to convey uphill water to the existing catch basin at the toe of Parcel 011- Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 296 of 344

4914-0207-9328 v5
031-049 (south-east project limit). Consider installing a catch basin on the uphill side of the new common driveway approach to limit water conveyed across the driveway approach.
f. Pavement restoration along project frontage. Asphalt grind and overlay shall have a minimum thickness of 2 inches.

2. Mass grading and earthwork operations shall occur between April 15 and October 15 unless approved otherwise by DPW.

3. A construction management plan should be submitted for City review prior to issuance of building permit. The project site is on a steep slope with minimal level area for set up and storage, construction staging will be required to be onsite unless negotiated otherwise with DPW.

4. An encroachment permit and grading permit will be required from the DPW prior to construction.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 297 of 344 Kate Colin, Mayor • Maribeth Bushey, Vice Mayor • Eli Hill, Councilmember • Rachel Kertz, Councilmember • Maika Llorens Gulati, Councilmember September 28, 2025
River Landon LLC
Glass Homes
PO Box 29281
San Francisco, CA 94129
Via Email: [email protected]
Dear Sir,
As you know, the original development application for the above referenced project was deemed submitted on June 30, 2025. On August 27, 2025, the City issued written correspondence identifying inconsistencies with objective City zoning, subdivision and design review standards as well as State laws, including SB 35. This letter confirms that the original development application cannot be approved for the preceding reasons, and the City therefore has no duty and declines to approve the original development application pursuant to Government Code section 65913.4(d)(1)(A).

On September 6, 2025 you resubmitted a revised development application. This letter further confirms that the City continues to process the revised development application and is reviewing the resubmittal pursuant to Government Code section 65913.4(c)(1). The City will provide a response on the resubmittal no later than October 6, 2026, pursuant to Government Code section 65913.4(c)(1)(C).

Sincerely,
Margaret Kavanaugh-Lynch
Planning Manager
AttaCase 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 298 of 344 chment C: September 28, 2025 City denial of Project October 6, 2025
Chris Sullivan
River Landon LLC
PO Box 29281
San Francisco, CA 94129
[email protected]
Dear Mr. Chris Sullivan:

The City of San Rafael has received your revised SB 35 Development Application submitted on September 6, 2025 (PLAN23-067, PA23-007) and proposing an 8-Unit Residential Development with 6 Accessory Dwelling Units (ADUs) located on Coleman and Fair Drive, APNs: 011-031-44, 45, 46, 47, 48, & 49, in the R10 Single-family Residential Zoning District (hereinafter the “Project.”).

The City has analyzed the Development Application, pursuant to Government Code section 65913.4(c)(1), for consistency with objective planning standards specified in Government Code section 65913.4(a), including but not limited to City objective zoning standards, objective subdivision standards, and objective design review standards in effect on the date of submittal of the Development Application.

Project Description
The project proposes the construction of an 8-Unit Residential Development with 6 Accessory Dwelling Units (ADUs) on six (6) lots identified as Assessor’s Parcel Numbers APNs: 011-031-44, 45, 46, 47, 48, & 49. The application does not appear to propose a subdivision of land but proposes to construct a mix of single detached family residences and detached ADUs on each lot. The project also includes the construction of a driveway across all parcels of various widths (26 feet to 46 feet- ten inches) as well as two hammerheads.

The project site is comprised of six (6) vacant lots identified as Assessor’s Parcel Numbers APNs: 011-031-44, 45, 46, 47, 48, & 49. The project site totals 61,844 sf (1.4 acres) and is designated Low Density Residential by the City of San Rafael General Plan and is zoned R10 with a potential Hillside Overlay. The proposed project is subject to standards in the Hillside Development Overlay District as all six lots have an average slope of over 25 percent (Chapter 14.12.020; Section 14.16.200).

Attachment D: October 6, 2025 City inconsistency determination on Alternative Project
Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 299 of 344

4898-1728-1390 v3
Consistency Review
This consistency review has been conducted based on application materials submitted on September 6, 2025. If the proposed Project, application materials for the Project, or proposal on the Project site are modified, these changes may result in updates to the City’s consistency review determinations and may trigger additional review pursuant to Government Code section 65913.4 subds. (a) and (c)(1)(C).

This consistency determination does not analyze the Project’s consistency with postentitlement permit requirements, including but not limited to standards and regulations applicable to any and all building permits (including but not limited to demolition, grading, foundation, and/or vertical infrastructure building permits). Prior to the issuance of any building permit, the Project must comply with all Sanitary District, Fire Department, Marin Municipal Water District, utility companies’, and other relevant local/State/federal agencies’ regulations that are directly applicable to the project.

Additionally, as the City has previously notified you, you have failed to reimburse the City for fees related to the processing of the Development Application. These fees must be paid in full.

Determination of Inconsistency.

The Project is inconsistent with multiple City objective zoning standards, objective subdivision standards, and objective design review standards. Additionally, the Project is inconsistent with provisions of State law. These inconsistencies are detailed in this letter. Because the Project is inconsistent with City standards as well as State law, the City cannot approve the Project as proposed. However, you are free to resubmit a modified development application, including modified plans and/or additional requests for waivers and/or incentives/concessions under State Density Bonus Laws (“SDBL”).

Should you choose to do so, the City will review your resubmitted development application pursuant to Government Code section 65913.4(c)(1) within the timelines set forth in section 65913.4(c)(1)(C).

Should you have any questions, please contact me at Margaret.kavanaugh[email protected].

Thank you,
Margaret Kavanaugh-Lynch
Planning Manager
City of San Rafael

ATTACHMENTS

1. Planning Division Consistency Review Comments

2. Housing Division Consistency Review Comments

3. Fire Department Consistency Review Comments

4. Department of Public Works Consistency Review Comments

5. Courtesy Comments
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Attachment 1: Planning Division Consistency Determinations

1. Inconsistency with Government Code 65913.4(a).

The Project is ineligible for the streamlined ministerial approval process set forth in Government Code section 65913.4 et seq. (“SB 35”) because the project is not a “multifamily housing development” (see Gov. Code § 65913.4(a)(1).) Pursuant to San Rafael Municipal Code (“SRMC”) section 14.03.030 – Definitions, multifamily residential development means “medium and high density residential development [. . .] containing three (3) or more attached dwelling units in one (1) or more structures located on a single parcel or common lot.” (SRMC § 14.03.030, “Residential, multifamily.”)
Staff notes that the project consists of detached single family dwellings that share a “silver metal screen” that runs between adjacent detached single family dwellings on adjacent, separate lots. The “silver metal screen” is a “fence,” as defined by the San Rafael Municipal Code. (SRMC § 14.30.030, “Fence”.) This fence that crosses property lines is also used to connect detached accessory dwelling units. This configuration does meet the definition of attached dwelling units on a common parcel or lot pursuant to either SB 35 or the San Rafael Municipal Code.

Instead, the Project contains six lots and each are described separately below:

Lot 011-031-49 consists of a single family dwelling and a detached accessory dwelling unit.

Lot 011-031-48 consists of two detached single family dwellings and a detached accessory dwelling unit.

Lot 011-031-47 consists of a single family dwelling and a detached accessory dwelling unit.

Lot 011-031-46 consists of a single family dwelling and a detached accessory dwelling unit, along with an accessory structure with a pool house.

Lot 011-031-45 consists of two detached single family dwellings and a detached accessory dwelling unit.

Lot 011-031-44 consists of a single family dwelling and a detached accessory dwelling unit.

No single parcel contains three or more attached dwelling units, so no parcel contains “multifamily housing.”

2. Inconsistency with City of San Rafael General Plan
The Project site and each parcel within the Project site has a General Plan designation of Low Density Residential. The Project is inconsistent with various Low Density Residential development standards.

Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 301 of 344

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Table 1.1 City of San Rafael General Plan
Maximum Height - (General Plan p. 3-25)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation. A waiver
pursuant to the SDBL
has been sought to
exceed height
standards.

The General Plan limits height on the site to 30 feet tall. All primary dwellings exceed 30 feet in height.

Parking and Driveways (General Plan Policy CDP-4.9)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation.

Parking is required to be screened from the street by landscaping. Plans do not show screening of parking.

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3. Inconsistency with City of San Rafael Zoning Code (Title 14) The project site is zoned R10 with a Hillside Overlay. The proposed project is subject to standards in the Hillside Development Overlay District as all existing lots have an average slope exceeding 25 percent, with existing average slopes ranging from 44.5 to 47.3 percent (SRMC Chapter 14.12.020 and SRMC Section 14.16.200). The Project is not consistent with several standards contained in the City of San Rafael Zoning Code.

Table 1.2
Base District Regulations (Chapter 14.04)
Single-Family Residential District Purpose (Section 14.04.010.H - Specific purposes; 14.04.020 – Land Use Regulations)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development
regulation.

The R-10 single-family zoning district allows for detached single-family residential uses. (SRMC Ch. 14.04.020.) Single-family residential use is defined as “low density residential development containing one (1) primary residential ‘dwelling unit’ for use by a single household on a single parcel.” (SRMC § 14.03.030, "Residential, single-family.”) The project proposes to construct two (2) primary dwelling units on lot 011-031-45 and lot 011-031-

48. Because the Project proposes multiple primary dwelling units on two lots, the Project is inconsistent with this standard.

The type of housing proposed (i.e. two primary dwelling units on a single lot) is only allowed in combination with an SB 9 application.

Setbacks (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development regulation. A
waiver pursuant to the
SDBL has been sought to
exceed rear, side, and front
setback standards.

The R10 zoning district requires a minimum side yard setback of 10 feet.

All lots propose development with side yard setbacks of approximately 4 feet. The R10 zoning district requires a minimum rear yard setback of 10 feet. All lots have rear yard setbacks of approximately 4 feet for the primary dwellings. The R10 zoning district requires a minimum front yard setback of 20 feet. While some of the lots propose development with front yard setbacks of greater than 20 feet, lot 011-031-48 has a front setback of approximately 2.5 feet for a primary dwelling unit.

Height (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard. A waiver
pursuant to the SDBL has
been sought to exceed
height standards.

The R 10 zoning district requires a maximum height of 30 feet tall. (General Plan p. 3-25.) All primary units appear to exceed 30 feet in height, although insufficient information has been provided in plans to verify the proposed height using the formula required for lots in the Hillside Overlay District, “Hillside Lots”. SRMC Section 14.03.030 (Definitions) defines height as:
"Height, hillside" means the height of all structures, fences and walls measured vertically from the existing (e.g., natural) Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 303 of 344

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grade to the uppermost point of the roof edge, wall parapet, mansard or other feature above the existing grade at any given point. See illustration below.

Height of Proposed Structures.

Maximum Lot Coverage (14.04.030 - Property development standards (R)) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent with
this standard.

The plan set pages that attempt to illustrate lot coverage do not show the lot lines themselves, therefore staff is not able to confirm the summary calculations provided.

Accessory Dwelling Units (14.16.285)
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
development regulation.

No more than one detached new construction ADU is permitted on lots with an existing or proposed single-family dwelling (see Gov. Code, § 66323, subd. (a)(2) and San Rafael Municipal Code § 14.16.285(E)(2).) The Project proposes more than one detached new construction ADU on lot 011-031-45 and is therefore inconsistent with both the San Rafael Municipal Code and State laws regarding the maximum number of detached ADUs.

Hillside Development Overlay District (Chapter 14.12)
Building Stepback - 14.12.030.A - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard. A
Per San Rafael Municipal Code Section 14.12.030:

On non-downhill slope, walls facing front and side property lines shall have a twenty-foot (20′) height limit measured from existing grade shall be observed within all areas within fifteen feet (15′) of the maximum building envelope limit. To allow for design flexibility on non-downhill slopes, an encroachment into the street front, Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 304 of 344

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waiver pursuant to the
SDBL has been sought to
exceed the stepback
standards.
street side and interior side stepback is permitted along twenty-five percent (25%) of the building length.

The proposed plans do not specify the required stepbacks, making it unclear whether compliance can be confirmed without supporting calculations. Certain portions of the proposed residence appear to exceed the stepback requirement; however, it is undetermined whether this exceeds the allowable 25% threshold.

Building Setbacks - 14.12.030.B - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
standard.

Structures may encroach into a required yard or setback for a distance of not more than one-half (½) of the required yard or setback provided that the decrease minimizes the impact of hillside development and grading, subject to approval by the hearing body of an environmental and design review permit. If such a reduction is granted, a compensating increase in setback is required in the opposing setback, i.e., a five-foot reduction in a front yard setback would increase the rear yard setback by five feet (5').

The setbacks shown on the plans illustrate that this development standard is not met on any parcel.

Natural State - 14.12.030.C - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard. A
waiver pursuant to the
SDBL has been sought to
exceed this standard.

A minimum area of twenty-five percent (25%) of the lot area plus the percentage figure of average slope must remain in its natural state. “Natural state" means all portions of lots that remain undeveloped and undisturbed. Grading, excavating, filling and/or the construction roadways, driveways, parking areas and structures are prohibited.

Here, with average slopes ranging from 44.5 to 47.3 percent, lots must maintain a minimum natural state area of 69.5 to 72.3 percent. The proposed plans do not accurately illustrate the required and proposed natural state requirements; further as the lot lines were removed from the plan set pages that attempt to illustrate the lot coverage, staff is not able to calculate the lot coverage per lot and therefore not able to ascertain consistency with this development standard.

Parking Requirements - 14.12.030 - Property development standards (-H) and Parking Requirements - Section 14.18.040
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

Single-family residential developments must provide two covered parking spaces per unit. (SRMC Table 14.18.040.) Additionally, on streets less than twenty-six feet (26') wide, a minimum of two (2) additional on-site parking spaces must be provided (not on the driveway apron). (SRMC Ch. 14.12.030(F).)
As the floor plans for the primary structure are not specific to each proposed location, it is not possible to determine based on the plan set provided if each unit has any covered parking. Further, the parking plans provided are not sufficient to determine the exact location of the Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 305 of 344

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spaces related to the dwelling units, so it is not possible to determine if the additional uncovered parking requirements are met for each site.

Streets and Driveways - 14.12.030 - Property development standards (-H) Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

New streets and driveway grades shall not exceed 18 percent unless an exception has been granted by the hearing body and the design has been recommended by the public works director and fire marshal to allow a driveway or street slope up to a maximum 25 percent. The project plans do not appear to indicate the proposed slope and therefore consistency cannot be determined at this time.

Site and Use Regulations (Chapter 14.16)
Affordable Housing - Section 14.16.030
Consistency Review Consideration Factors and Notes
The Project is not
consistent with this
standard.

Pursuant to San Rafael Municipal Code Section 14.16.030, residential development projects must provide affordable housing units as described in the policies and procedures specified in the San Rafael City Council's Guidelines for the Administration of the Affordable Housing Trust Fund (Resolution 14890). See Table 2.1 below for analysis regarding consistency with such Guidelines.

Fences and Walls Section - 14.16.140
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

Fences located within the front and streetside setbacks may be 4 feet tall while fences not exceeding seven feet (7’) in height may be located within the required rear yard or interior side yard. Retaining walls not exceeding a height of four feet (4’) in height may be located within the required rear yard and interior side yard. (SRMC Ch. 14.16.140.) The plans do not contain enough detail for the City to determine whether the Project complies with the fence standards at this time.

Swimming pools, hot tubs, and other mechanical equipment - Section 14.16.320 Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

If a pump or filter or any similar mechanical equipment, including new but not limited to transformers for electric vehicle charging stations and wind energy systems, is located within fifteen feet (15') of any bedroom window on an adjacent lot, a three (3) sided solid enclosure with baffles to screen the equipment from the bedroom, or equally effective measure(s), shall be provided to reduce noise impact. Sound attenuation shall be provided around mechanical equipment to ensure that any mechanical noise that is perceptible at the property line (and generally measured in direct line of sight of the equipment) is attenuated to the maximum extent practicable and that
daytime/nighttime thresholds established under SRMC Table 8.13-1 for the applicable zoning district are not exceeded. The plans indicate that the Project will include a pool, but do not contain enough detail to determine whether the Project complies with this standard.

Water-efficient landscape Section 14.16.370
Consistency Review Consideration Factors and Notes
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The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

Any project that proposes new or rehabilitated landscapes which are developer-installed in single-family residential and all other residential developments, regardless of size, where the proposed landscape area is equal to or greater than two thousand five hundred (2,500) square feet must comply with water-efficient landscape requirements and monitor water usage for irrigation. The City has adopted by reference the standards contained in the Marin Municipal Water District (MMWD) Ordinance (Water Conservation). The Project application incorrectly states that these standards are not triggered. Further, the application does not clearly detail how it would meet these requirements, so the City cannot determine at this time whether the Project is consistent with these standards.

Parking Space Dimensions - Section 14.18.100
Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

This section specifies parking space dimensions for standard and compact parking stalls. While some dimensions are provided, and the cover pages notes that all spaces are 9 feet by 19 feet, the application does not contain enough information to determine whether all parking spaces additional information is needed to verify compliance.

Access to the Public Right-of-Way - Section 14.18.140
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

Subsection (A) of this section requires driveways serving residential uses with less than 6 vehicle parking spaces to be a minimum of 10 feet wide.

Subsection (C) of this section specifies that driveway grades are subject to review and determination by the city engineer, noting that the maximum driveway grade typically allowed is eighteen percent (18%*).

The plans do not contain enough information to determine whether the Project complies with these standards.

Environmental and Design Review Permits (Chapter 14.25) Review Criteria – Section 14.25.050
Consistency Review Consideration Factors and Notes
The Applicant has not
submitted sufficient
information to enable the
City to analyze this
standard; therefore the
Project is not consistent
with this standard.

Utility Service. Utility connections shall be installed underground.

Proposed method of sanitary sewage disposal for all buildings shall be indicated. Refuse collection areas shall be screened and located in areas convenient both to users and to persons who make collections.

There shall be adequate ingress and egress to all utilities. (Note:

Recycling facilities must meet Standard of Resolution 93-57.) The application does not contain enough information to allow the City to determine compliance with any of these standards.

The Applicant has not
submitted sufficient
information to enable the
City to analyze this
Walls, Fences, and Screening. Walls, fences and screening shall be used to screen parking and loading areas, refuse collection areas and mechanical equipment from view. Screening of mechanical equipment shall be designed as an integrated architectural component of the Case 3:25-cv-04904-LB Document 60 Filed 08/04/26 Page 307 of 344